Just war theory focuses primarily on bodily harm, such as killing, maiming, and torture, while other harms are often overlooked. At the same time, contemporary international conflicts increasingly involve the use of unarmed tactics, employing “softer” alternatives or supplements to kinetic power that have not been sufficiently addressed by the ethics of war or international law. Soft war tactics include cyber warfare and economic sanctions, media warfare and propaganda, as well as nonviolent resistance as it plays out in civil disobedience, boycotts, and “lawfare.” While the just war tradition has much to say about “hard” war – bullets, bombs, and bayonets – it is virtually silent on the subject of “soft” war. Soft War: The Ethics of Unarmed Conflict illuminates this neglected aspect of international conflict.
- Michael L. Gross is Professor and Head of the School of Political Science at the University of Haifa, Israel. He specializes in applied normative theory, military and medical ethics, asymmetric war, and non-kinetic warfare. He is the author of Ethics and Activism (Cambridge University Press, 1997); Bioethics and Armed Conflict (2006); Moral Dilemmas of Modern War (Cambridge University Press, 2010); Military Medical Ethics for the 21st Century (with Don Carrick, 2013); and The Ethics of Insurgency (Cambridge University Press, 2015). He has lectured widely on battlefield and military medical ethics at defense centers in Israel, the United States, and Europe.
- Tamar Meisels is a political theorist and Associate Professor in the Political Science Department at Tel Aviv University. She earned her D.Phil. in Politics from Oxford University in 2001. Her primary research and teaching interests include liberal nationalism, territorial rights, and the philosophical questions surrounding war and terrorism. She is the author of Territorial Rights (2005 and 2009) and The Trouble with Terror: Liberty, Security, and the Response to Terrorism (Cambridge University Press, 2008) and Contemporary Just War: Theory and Practice (2017).
- Michael L. Gross is Professor and Head of the School of Political Science at the University of Haifa, Israel. He specializes in applied normative theory, military and medical ethics, asymmetric war, and non-kinetic warfare. He is the author of Ethics and Activism (Cambridge University Press, 1997); Bioethics and Armed Conflict (2006); Moral Dilemmas of Modern War (Cambridge University Press, 2010); Military Medical Ethics for the 21st Century (with Don Carrick, 2013); and The Ethics of Insurgency (Cambridge University Press, 2015). He has lectured widely on battlefield and military medical ethics at defense centers in Israel, the United States, and Europe.
The Ethics of Unarmed Conflict
Michael L. Gross and Tamar Meisels
Quis Custodiet Ipsos Custodes?
Table of Contents
- Soft War: The Ethics of Unarmed Conflict
- Michael L. Gross and Tamar Meisels
Definitions and Meta Views
Coercion, Manipulation, and Harm: Civilian Immunity and Soft War
Reconsidering Economic Sanctions
Cyber Warfare, Media Warfare, and Lawfare
State-Sponsored Hacktivism and the Rise of “Soft” War
Media Warfare, Propaganda, and the Law of War
Laurie R. Blank
The Ethics of Soft War on Today’s Mediatized Battlespaces
Abuse of Law on the Twenty-First-Century Battlefield: A Typology of Lawfare
Unarmed Bodyguards to the Rescue? The Ethics of Nonviolent Intervention
How Subversive Are Human Rights? Civil Subversion and the Ethics of Unarmed Resistance
Christopher J. Finlay
Bearers of Hope: On the Paradox of Nonviolent Action
Hostage Taking and Prisoners
A Cooperative Globalist Approach to the Hostage Dilemma
Kidnapping and Extortion as Tactics of Soft War
Proportionate Self-Defense in Unarmed Conflict
Michael L. Gross
« 01 »
In international law and just war theory, war is treated as normatively and legally unique. In the context of international law, war’s special status gives rise to a specific set of belligerent rights and duties, as well as a complex set of laws related to, among other things, the status of civilians, prisoners of war, trade and economic relationships, and humanitarian aid. In particular, belligerents are permitted to derogate from certain human rights obligations and to use lethal force in a far more permissive manner than is the case in other kinds of conflicts and in domestic law enforcement operations. Given war’s unique status, the task of defining war requires not just identifying the empirical features that are characteristic of war but explaining and justifying war’s special legal and moral status.
In this chapter, I propose a definition of war that captures war’s unique features and can offer insights into when and how some forms of unarmed conflict could count as wars. The definition I will defend is as follows:
- A war exists when all the following conditions are met:
- There are two or more organized groups.
- These groups are engaged in intense hostilities.
- No party to the conflict and no other third party has the authority and ability to effectively adjudicate between the opposing sides, punish them, and otherwise maintain effective control in the arena of the conflict.
I will argue that this definition can account for war’s unique legal status, is consistent with the purposes of the legal framework governing war, and permits a deeper understanding of the nature of contemporary conflicts. My definition will not include any claims regarding jus ad bellum and jus in bello criteria, except in so far as these categories are only taken to apply to conflicts that are classified as war.
In Section 1, I discuss the normative and legal significance of defining war. In Section 2, I defend my definition of war, and in Section 3, I apply my definition to three case studies discussed in this volume: lawfare, economic sanctions, and cyber war. I argue that it is possible for these forms of unarmed conflict to meet my definition of war. This possibility raises hard questions about how traditional categories, such as the categories of combatants and civilians, can be applied to unarmed conflicts, and I offer some suggestions for how such concepts could be interpreted in the context of unarmed conflicts.
The Legal and Normative Implications of Defining War
The complex legal framework governing war (including International Humanitarian Law (IHL), of which the Geneva Conventions are part) governs a wide range of issues, including the status of civilians and refugees in war, asylum laws, treaty obligations, as well as the legal rights and obligations of belligerents in a conflict (International Legal Association (ILA) 2010, 4). For example, regardless of the justness of their cause, belligerents on both sides have the right to kill enemy forces without warning and the right to detain prisoners of war without trial for the duration of the conflict (ILA 2010, 2). In addition, it is legally permissible for belligerents to cause some harm to civilians if doing so is a side effect of a necessary military operation, and the harm is not directly intended and is not disproportionate to the importance of the military objectives of the operation (Luban 2002, 9).1
The laws of armed conflict also restrict how enemy forces may be treated. Since “fighting back is a legitimate response of the enemy” (Luban 2002, 9), enemy combatants may not be tried or punished for their participation in a conflict (even if their cause is unjust), they may not be tortured or mistreated if they are captured (International Committee of the Red Cross (ICRC) 2010), and if captured they must be released upon the cessation of hostilities.2 The legal freedoms and constraints imposed on belligerents reflect distinct features of armed conflicts. First, armed conflicts typically occur in circumstances in which a state’s domestic authority and law enforcement either do not apply to the conflicting parties (as in conflicts between states, or between states and foreign non-state groups) or cannot apply (as in cases of severe civil unrest where domestic authority has broken down). Thus in a typical war there is either no authority that has jurisdiction over the parties involved (as in inter-state wars), or there is no authority that is capable of enforcing its jurisdiction over the conflicting parties (as in a civil war or insurgency).
This feature of war gives rise to practical and political reasons in favor of maintaining the current legal framework of armed conflict, even if one believes that, morally speaking, some belligerents do not have a right to fight back and some combatants should be punished for fighting for unjust causes. For example, while Jeff McMahan (2006; 2009) has criticized the view that combatants on both sides of a conflict are morally equal, he defends the legal equality of combatants:
The law must of course permit just combatants to kill enemy combatants. ... And it would be wholly inefficacious to forbid unjust combatants to do the same; therefore the law must at present permit all combatants to kill their enemy counterparts.
(McMahan 2009, 109)
An additional practical reason in favor of the current legal status of belligerents is that it may be impossible to resolve such conflicts without the freedoms that belligerent status involves. For example, it would be impossible to apply the high evidentiary standards characteristic of law enforcement operations to a war situation. Likewise, it may be impossible for military forces operating in a combat zone to gain sufficient intelligence to enable them to restrict the use of force only to military targets, and so it may be impossible to avoid inflicting some harm to civilians and civilian infrastructure. The urgency of ending a conflict might also rule out the use of law enforcement operations such as long-running infiltration of enemy groups, and surveillance operations.
Thus, even though the laws of armed conflict are more permissive both in terms of the evidentiary standards that are required to be met before enemy forces may be attacked and in terms of permissible collateral damage, these laws aim to minimize the overall destruction caused by an armed conflict.
Definitions of War
Given war’s unique status, a plausible definition of war should meet a number of basic criteria. It should be able to account for war’s unique status, and distinguish war from other forms of political and nonpolitical violence. Arguably, it should also be consistent with everyday usage. However, it need not be identical with common usage given the frequent use of “war” to describe many different kinds of battles, such as the “war against drugs.” Finally, the plausibility of a given definition must be assessed in light of the purpose for which the definition is created
A definition of war can serve a number of purposes: It can be designed for use in a particular legal context to enable the ready identification of situations to which a specific body of laws apply; it can be intended to describe the conditions under which war is morally permissible; or it might be intended to help identify certain kinds of conflicts for the purposes of political or sociological analysis.
Taking these factors into account, we can distill the following rough taxonomy of definitions of war. The following categories are not intended to be exhaustive3 or exclusive – a definition of war could include normative, political, and sociological elements.
Just War Definitions
Just war definitions identify the conditions under which waging war is morally permitted rather than the conditions that define war as such. This conception of war is part of the just war tradition associated with thinkers such as Augustine, who was concerned with whether waging war is consistent with Christian principles (Reichberg et al. 2006, 72) and Thomas Aquinas, who developed and elaborated many of the jus ad bellum criteria, including just cause, legitimate authority, and rightful intention (Reichberg et al. 2006, 176–177). Just war conceptions of war were further developed by thinkers including Francisco de Vitoria (2003) and, in the twentieth century, Michael Walzer (2000).
Juridical definitions of war emerged in the seventeenth century in the context of the developing international law of war, and aim to identify the conditions under which the laws of war apply, rather than determining when war is just.4 For example, Hugo Grotius in The Rights of War and Peace (1625) defines war simply as “the state of contending parties, considered as such,” and argues that a definition of war should not include the criteria of a just war “because it is the Design of this Treatise [The Rights of War and Peace] to examine, whether any War be just, and what War may be so called. But we must distinguish that which is in Question, from that concerning which the Question is proposed” (Tuck 2005, 136).
A good example of a contemporary legal definition, and one that I will discuss later, is that proposed by the International Law Association (ILA) at The Hague in 2010. The ILA defines armed conflict as occurring when there is “the existence of organized armed groups” who are “engaged in fighting of some intensity” (ILA 2010, 2). The ILA’s definition is intended to be consistent with the development of jurisprudence on the laws of armed conflict during the twentieth century, and to allow the identification of conflicts to which IHL would apply.
Political and Sociological Definitions
Broadly speaking, political definitions focus on the aims that characterize the use of war and sociological definitions describe a set of specific material facts about a conflict, such as the duration, number of casualties, and the nature of the belligerents. A classic example of a political definition is Carl von Clausewitz’s definition of war as “an act of violence intended to compel our opponents to fulfill our will” (von Clausewitz 2008, 92).
An example of a sociological definition is the following definition proposed by Singer and Small (1972) and Deutsch and Senghaas (1971), who define war as any series of events that meets the following three criteria:
- Size: war results in at least 1000 battle deaths (not counting, therefore, the indirect victims through famine, lack of shelter, and disease)
- Preparation: war has been prepared in advance, and/or is being maintained, by large-scale social organizations through such means as the recruitment, training, and deployment of troops; the acquisition, storage, and distribution of arms and ammunition; the making of specific war plans and the like; and
- Legitimation: war is legitimized by an established governmental or quasi-governmental organization, so that large- scale killing is viewed not as a crime but as a duty.
This definition (and other sociological definitions) aims to allow identification of a particular kind of war for the purposes of answering specific questions about, for example, the duration of certain kinds of conflicts.
A New Definition of War
In this section,
I defend the following definition of war:
- A war exists when all the following conditions are met:
- There are two or more organized groups.
- These groups are engaged in intense hostilities.
- No party to the conflict and no other third party has the authority and ability to effectively adjudicate between the opposing sides, punish them, and otherwise maintain effective control in the arena of the conflict.
In relation to the taxonomy of definitions described above, this definition fits most naturally in the category of sociological definitions. The definition is not normative or political, since it makes no reference to the aims of the parties involved or the conditions of a just war. Rather, it is intended to pick out the material facts that can explain and justify war’s unique legal status. Thus, while it is not a legal definition, it is a definition that can serve the purposes of international law by identifying the characteristics of war that warrant the application of the laws of armed conflict.
Elements of the Definition
There Are Two or More Organized Groups
In their report, the ILA stated that the existence of “organized armed groups” is determined by, amongother things, the presence of a command structure, “training, recruiting ability, communications, and logistical capacity” (ILA 2010, 2). I concur with this characterization of organized groups, with the exception that I think unarmed groups could be belligerents. As I shall argue in Section 3, I believe that a state of war can exist in which at least one party does not use military weapons or direct physical violence.
I agree with the ILA that the wearing of uniforms is not required for the status of “organized groups” to be met, since such a requirement is arbitrarily narrow and, after 1977, is no longer listed as a criterion of combatant status under the Geneva Conventions, replaced instead by “carrying arms openly” (1977 Additional Protocol (I) to the Geneva Conventions, Art. 44).5 To give just one example, ISIS fighters do not wear any kind of conventional uniform, yet I would argue that the conflict against ISIS counts as a war under most plausible definitions of war, and that ISIS counts as an organized group in the relevant sense.
Intensity of Hostilities
Intensity is a concept that cannot be defined precisely. While the ILA does not define intensity, they reject definitions of intensity that include a specific number of casualties or that require a conflict to continue for a specific duration, stating that while “the requirement of intensity will normally have a temporal aspect ... a lesser level of duration may satisfy the criterion if the intensity level is high” (ILA 2010, 30).
The ILA is correct to reject definitions of intensity that include a fixed number of casualties. In Singer and Small’s (1972) definition, one criterion of war was “at least 1000 battle deaths” (van der Dennen 1980, 6). The problem with this condition (and with any definition that includes a set number of casualties) is that the line between war and lesser conflicts becomes arbitrary. Under Singer and Small’s definition, a conflict that meets the criteria of preparation and legitimation, but that only causes 995 battle casualties would not count as a war. Yet it is difficult to see why an additional five casualties could explain or justify the significant change in status signaled by calling a conflict a war. It is important that a definition of war explain when and why a conflict becomes a war, but appealing to a fixed number of causalities is not a plausible way of marking that distinction.
For that reason, I propose that intensity should be measured by the level of disruption caused by a conflict to those living in the arena of conflict (combatants and civilians), including the impact on their physical safety; access to basic goods such as food, water, warmth, and shelter; and the functioning of basic civilian infrastructure. In essence, a conflict meets the criterion of intensity when it becomes so disruptive that the ability of civilians to meet their basic needs is seriously threatened, and the local authorities are unable to effectively control the conflict and protect civilians and civilian infrastructure from harm. However, the intensity requirement does not require that each party to a conflict experience the same degree of disruption. Thus, this criterion could be met in cases where neither party to a conflict experiences significant disruption, as when a conflict between two states takes place primarily outside the geographic boundaries of both states.
This means that intensity can’t be measured simply by the numbers of people killed or wounded in a conflict, but requires looking more broadly at the impact of a conflict on civilians’ ability to meet their basic needs, as well as the impact on the functioning of basic civilian infrastructure such as the electricity and water supply. In addition, the intensity of a conflict will also depend on preexisting facts about the stability of the local government in the arena of conflict, the effectiveness of local law enforcement and emergency services, and the ability of local infrastructure and resources to withstand attacks. So a conflict in a weak state with few resources might meet the criterion of intensity far sooner than an equivalent conflict within a strong state with effective law enforcement and emergency services.
In relation to the concept of “hostilities,” I argue that the concept of hostilities should incorporate ways of inflicting harm that do not involve the infliction of physical violence. This would allow my proposed definition to be applied to conflicts that do not use military force, and would capture how such conflicts could still cause sufficient disruption and destruction to justify the imposition of the legal framework of war. Thus, I define “hostilities” as the intentional infliction of substantial damage (which need not be limited to physical damage) to the lives and welfare of individuals (including their access to basic goods, as well as their physical and psychological health), and to the infrastructure, environment, and basic functioning of states and communities.
No Adjudicating Authority
This criterion is necessary in order to distinguish war from other forms of inter- and intra-state violence. One problem with competing definitions such as the ILA’s is a failure to clearly distinguish war from conflicts involving belligerents who fall under the legal jurisdiction of a third party that is able to enforce its authority. Fighting between two criminal gangs in a state, for example, should not be treated as a war if the state is able to maintain effective authority over its jurisdiction, since both groups are legally subject to the state even if neither group acknowledges that fact.
This criterion applies to both inter- and intra-state conflicts. The criterion may be most easily met in the case of international conflicts, given that as yet there is no organization that has effective authority over conflicting states, since effective authority does not just mean legal authority or jurisdiction. Arguably, the UN has at least some legal authority over member states, but it does not as yet have enforceable authority over them.
In cases of non-international armed conflicts such as civil wars, one party to a conflict may have political authority over the other, but if the conflict reaches a degree of intensity such that one party can no longer effectively enforce its authority over the other, then the third criterion would be met. However, we may wonder when this point is reached. In my view, the third criterion would be met when one party’s authority is so weakened that they lose effective control over a sufficient number of areas in their jurisdiction such that they are unable to protect civilians in those areas or enforce their political and legal authority.
The Aims of Belligerents
Even if one accepts the above defense of the elements of my definition, one might argue that my definition is inadequate because it makes no reference to the aims of belligerents. This omission may seem troubling, since it suggests that conflicts involving non-political groups such as criminal gangs and corporations could count as wars. I argue that this omission can be defended.
As it stands, my definition does not distinguish traditional war from certain extreme forms of criminal violence. For example, the ongoing conflict between Mexican drug cartels and the Mexican government is conducted by organized groups –drug cartels are highly structured, with chains of command and supply lines– and clearly meets the criterion of intense hostilities (there have been over 60,000 casualties in the last ten years (Bender 2014)). So it appears that this conflict meets my definition of war. Interestingly, while the ILA’s definition does not include any reference to the aims of belligerents, the ILA states that, in relation to the Mexican conflict: “If the criminal gangs decided to challenge civil authorities for the right to govern, as opposed to fighting to prevent the break-up of their criminal activities, Mexico could become the scene of a non- international armed conflict” (ILA 2010, 28. Emphasis added). This suggests that the ILA doesn’t consider the conflict in Mexico to be an armed conflict because the drug cartels are fighting to maintain control over their criminal activities, rather than seeking political power. While this view accords with many traditional understandings of war, I believe it is flawed.
Can a Criminal Organization Wage War?
If the conflict between the drug cartels and the Mexican government were characterized as a war, the drug cartels would have at least some of the legal privileges of belligerents. While they would not count as lawful belligerents unless they carried their arms openly, and belonged to an organization that was able to apply military discipline and abide by the laws of armed conflict (1977 Additional Protocol (I) to the Geneva Conventions, Art. 44), cartel soldiers would have the right to target Mexican government soldiers, attack military targets, and expose civilians to a degree of harm in the course of the armed conflict, proportionate to the importance of their military objectives. Likewise, the Mexican government would have expanded powers permitting the use of force that endangers civilians to some degree. Such consequences are disturbing and seem, on the face of it, to offer strong reasons why this conflict and others like it should not be defined as wars.
But this is too quick. If a conflict meets the criteria of intensity, organization, and lack of effective authority, why shouldn’t it be called a war? Since, as I have argued, the legal status of war is justified in part by practical and political considerations regarding how to mitigate the destruction caused by wars, perhaps it should not matter if one of the belligerents is a criminal organization.
There are two main objections to this view. First, while cartel foot soldiers would be legally accountable for violations of the laws of armed conflict and for their criminal activities, it is highly counterintuitive to suggest that criminals could be legally permitted to kill Government soldiers and endanger civilians in pursuit of a criminal aim. In addition, unlike ordinary combatants, members of drug cartels cannot plausibly be given any “benefit of the doubt” regarding the legality or morality of their cause. It is implausible to suppose that members of drug cartels don’t realize that they are engaged in highly illegal activities.
The argument described above has some force. However, if the reason why cartel soldiers shouldn’t have any of the legal rights granted to belligerents is because they are fighting for a clearly illegal cause, then this claim can’t be limited only to soldiers fighting for criminal organizations. Soldiers fighting for Milosevic in the former Yugoslavia (Hartmann 2011), for example, could hardly be unaware that they were involved in a genocidal campaign.
In addition, some of the reasons traditionally given for excusing combatants fighting for an unjust cause (such as forcible conscription and exposure to propaganda) apply to cartel soldiers. For example, a number of drug cartels use child soldiers, many of whom are poor, uneducated, and are “enticed or manipulated” into working for the cartels (Beckhusen 2013).6 If there is any force to the idea that the laws of war should apply equally to both sides regardless of the morality of their cause, then one cannot draw a non-arbitrary distinction between cartel soldiers and (say) combatants fighting for genocidal regimes. If the latter shouldn’t be prosecuted for fighting, there are reasons for excusing the former as well.
The second reason for denying belligerent status to drug cartels is that the cartels’ primary aim is to further their criminal enterprises. While drug cartels and other criminal organizations might aim to influence political decision-making (for example, by bribery) and may challenge state authority in some areas and even become de facto leaders in those areas, this is typically in pursuit of their criminal goals and not in pursuit of political power per se.
This argument relies on two problematic premises. First, this argument assumes that it is possible to draw a sufficiently clear distinction between political and criminal aims to enable the ready identification of the aims of groups involved in conflicts. While there are wars in which the aims of both parties are clearly political (however “political” is defined, which is itself an important question), there are many wars where the distinction is far from clear, such as in wars of conquest and wars of plunder.
Second, this argument assumes that political (but not criminal or non-political) aims play a central role in justifying war’s unique status. It is true that early just war theorists such as Aquinas and Augustine often distinguished war from private violence on the grounds that war was characterized by the pursuit of public welfare. For example, Aquinas argued that an individual could not declare war because it was not his duty “to summon together the people, which has to be done in wartime” (Reichberg et al. 2006, 177). However, the fact that political aims may play a role in justifying war does not mean political aims are essential to defining war, particularly since some political aims (such as genocidal campaigns and forcible occupation of a foreign country) are criminal according to international law, and arguably morally worse than the aims of some non-political groups who are involved in conflicts.
In addition, as I argued above, my definition is not a normative or political definition. Instead, it is intended to identify the conditions that must be present in order to justify the application of the laws of armed conflict. While the aims for which a war is fought are important for the purposes of sociological and normative analysis, they are not relevant to the question of whether a conflict should count as a war in the first place. Thus, my view echoes Grotius’ claim that “We do not include Justice in the Definition of War” (Tuck 2005, 136). In Grotius’ account, war is not defined as involving the pursuit of public or political aims. Rather, public wars are simply one “species” of the “genus” of war and the term can also be applied to other forms of conflict, such as that between private individuals (Tuck 2005, 136).
Furthermore, limiting the term “war” to conflicts fought for public rather than private aims arbitrarily restricts the use of the term. If two conflicts are identical in every respect (intensity, organization, and so forth) except that one is in pursuit of private aims and one is in pursuit of political aims, it strikes me as implausible to say that only one of these conflicts is a war even though the material facts in each case are identical.
The chapters in this volume discuss many different forms of unarmed conflict. Several chapters discuss the use of non-kinetic or nonviolent tactics within the context of an existing war, such as kidnapping and extortion (Meisels, this volume). Here, I want to consider whether the use of unarmed force by itself could constitute a war as I have defined it. As we shall see, the possibility that unarmed force could amount to war raises hard questions about the scope and possibilities of “fighting back” against unarmed force, how to apply categories such as “combatant” and “civilian,” and how to understand the distinction between civilian and military targets. If unarmed conflicts can count as wars, it may be the case that some of the central concepts in the laws of armed conflict would need to be reformulated to accommodate this possibility.
The term “lawfare” typically refers to the use or abuse of IHL by belligerents in order to (for example) hamper their opponent’s military strategies, or undermine their opponent’s perceived legitimacy by leveling accusations of war crimes against them (Blank, this volume; Dill, this volume; Dunlap 2010). Thus “the most common understanding of lawfare is not State A’s use of law to get State B to do its bidding against B’s will, but A’s abuse of law to that end” (Dill, this volume, 3). However, the question of whether lawfare itself could be a form of war has not been seriously considered. It is difficult to see how even bad faith appeals to IHL could, in themselves, cause sufficient harm to ever count as a form of war.
That said, I think it is possible that the use of legal resources by one group against another could meet my definition of war. To illustrate this possibility, I will modify a real-life example, that of the actions of the Texaco oil company in Ecuador. The Texaco oil company was accused of causing massive environmental damage “leading to devastating impacts on plants and wildlife, human health, and local cultural practices” (Joseph 2012, 71) in Ecuador’s Amazonian rainforests from 1967 to 1990. The indigenous people from that region have spent many years seeking compensation
through US courts from Texaco and its merged successor company ChevronTexaco (now known as Chevron), and the company has been accused of using “new, recycled and even contradictory legal arguments ... to thwart its adversaries” (Joseph 2012, 70).
For the sake of argument (I am not claiming that this is in fact the case) let us suppose that Chevron did cause the degree of devastation to the environment, local culture, and health of the indigenous people that it has been accused of, and did so intentionally or at least in full knowledge of the destructive effects of its operations. Would Chevron’s subsequent use of the legal system to avoid compensating the indigenous people and paying for environmental cleanup operations amount to a war against the indigenous people? This is a separate question from whether the original oil operation itself was as an act of war, an issue that I cannot explore in this chapter.7 Rather, the question is whether Chevron’s use of legal tactics to avoid environmental clean-up constitutes a form of war because of the foreseeable effects of such legal tactics on the continued risks posed to the indigenous people and their community by Chevron’s failure to address the environmental damage.
I suggest that the answer might be “yes” if it can be shown that the legal obstacles used by Chevron continued and even worsened the environmental damage and health impacts of the original oil operations. If this is the case, then arguably the criterion of “intense hostilities” would be met, since Chevron’s activities would amount to a serious and ongoing attack on the basic welfare and needs of the indigenous people. Chevron’s actions constitute an attack because the ongoing harm to the indigenous people would be the result of the environmental effects of the oil operations and Chevron’s abuse of the law – an abuse that worsened and continued the original harm. This would thus be a case of “lawfare” because the abuse of the law is a central means by which serious harm is inflicted.
In addition, Chevron counts as an “organized group” as I have defined it, and if (as has been claimed) the Ecuadorian government was unable (and unwilling) to conduct effective cleanup operations (Joseph 2012, 72) there is no effective authority to “adjudicate between the opposing sides, punish them, and otherwise maintain effective control in the arena of the conflict.” While the US court system has a degree of legal authority over the parties involved, the court system does not possess effective authority over the arena of combat – in this case, the affected area in Ecuador.
If this is correct, and Chevron is committing an act of war against the indigenous Ecuadorians, then who are the combatants, and what rights and privileges do they have? Would the indigenous Ecuadorians have the right to use lethal force against the leaders of Chevron and the lawyers involved in the case? Or even against the Ecuadorian government for its failure to protect them? If so, could they expose innocent civilians to risks in the use of such force?
My tentative answer is that, yes, the indigenous Ecuadorians would have the right to use lethal force against those most responsible for the destruction of their home. However, we first need to clarify what “most responsible” means in the context of an unarmed conflict.
Since Chevron is not a military organization, we can’t use traditional methods of distinguishing combatants from noncombatants and military from non-military targets. There must be an alternative method of determining combatant status. While I cannot offer a detailed solution here, one possibility is to construe combatant status in unarmed conflicts in terms of an individual’s normative relationship to the relevant harms rather than in terms of whether they wear a uniform or carry arms openly. This idea is similar to Michael Gross’ idea of “participatory liability” (this volume, 397; 2015, 68–72), but differs in one important aspect. In Gross’ view, a civilian may be subject to some form of defensive force depending on the degree of their “contribution to a war effort” (this volume, 397). Gross doesn’t clarify whether this contribution is to be understood in causal terms (i.e. determined by whether and to what degree a civilian’s actions make a causal difference to the war effort), but it is reasonable to interpret his account in this way. In my view, in contrast, an individual’s relationship to the harms in question need not be causal in order to warrant ascriptions of responsibility, particularly given the notorious difficulty of establishing individual causal responsibility for harms that are the result of collective actions (Kutz 2000). Instead, the relationship between an individual and her actions can be explained in terms of the centrality of an individual’s role to the achievement of the collective aims (Kutz 2000, 159). In this view, Chevron’s senior management and the lawyers involved in the case would bear significant responsibility for the harm inflicted on the indigenous people, since their actions and their roles reveal a normative commitment to intentionally furthering ends that foreseeably cause continued harm, regardless of each person’s individual causal contribution to that harm.
But while this account may allow the identification of combatants in unarmed wars, it is less clear how to identify the equivalent of legitimate institutional targets such as military headquarters. If Chevron’s leaders are combatants, would this mean that the headquarters of Chevron are a legitimate target? Not necessarily. In a conventional war, military headquarters and base camps are legitimate targets at least partly because the main function of those institutions is to assist in prosecuting the war. But the headquarters of a corporation like Chevron are involved in many different operations and functions. The pursuit of the legal war against the indigenous people would be only one small aspect of their operations. So, while some of Chevron’s leaders are arguably responsible for the harm inflicted on the indigenous people, the company as an institution is not geared toward that end. Thus, while I think a case can be made for the use of lethal force against individual members of the corporation on the grounds outlined above, it is far more difficult to make the case that Chevron headquarters would be a legitimate target.
This has implications for the issue of collateral damage. If I am right that, at least in this example, there is no clear equivalent to legitimate targets such as military headquarters, this suggests that there might be a much lower tolerance of collateral damage in the prosecution of unarmed wars. If we can identify responsible individuals (but not large-scale targets), then perhaps the most appropriate normative framework to adopt in these cases is that of targeted killings or assassinations. While both of these tactics are controversial (Finkelstein et al. 2012), they provide the best way of encompassing the possibility of unarmed conflicts and permitting the use of force against responsible parties without significantly endangering civilians.
According to Joy Gordon (this volume), economic sanctions “typically involve the withdrawal of trade, although they may also include terminating foreign aid, blocking the use of currency, denying access to international financial institutions, and blocking access to humanitarian aid.” Gordon notes that over the last century economic sanctions have been used for a range of political purposes, from being viewed initially as a “form of warfare, serving the military interests of the parties to a conflict” to being used “to express disapproval, or to exert influence or create pressure, by causing inconvenience or imposing additional costs on the economy of the target nation,” as, for example, when the UN Security Council imposed economic sanctions against South Africa for apartheid (this volume, 58–59).
But because economic sanctions typically do not involve kinetic force and were framed by the League of Nations and the United Nations as “peaceful pressure” (Gordon, this volume, 63), “sanctions have eluded both the scrutiny and the criticism which would have been forthcoming if the same acts were seen as a form of warfare” (Gordon, this volume, 61). Yet the idea that just war principles can be applied to economic sanctions is not particularly controversial (Meisels 2011; Pierce 1996). In addition, if we accept the claim that wars need not involve the use of military force, as I argued in an earlier section, one of the reasons against applying a just war framework to economic sanctions falls away.
It is relatively easy to show that the use of economic sanctions could meet the criteria of war as I have defined it. This would be the case if sanctions are imposed by an organized group, cause severe foreseeable harm to the civilians, infrastructure, and environment of the state or community targeted by the sanctions, and there is no effective authority with jurisdiction over the parties involved. There is at least one real-life case where the use of economic sanctions plausibly meets these criteria: the use of economic sanctions against Iraq authorized by the UN Security Council, and implemented primarily by the United States (with support from the British) after the 1991 Gulf war. There is evidence that the sanctions caused severe suffering to the civilian population, and hindered the repair of essential civilian infrastructure. For example, the imposition of the sanctions has been linked to the deaths of 237,000 children under the age of five (Gordon 2014–2015, 2), and contributed to severe cholera and typhoid epidemics in 1994 by denying Iraq access to resources that would have enabled the rebuilding of sewage and water treatment plants that had been damaged in the first Gulf War (Gordon 2004; 2010).
If these claims are accurate, then it is clear that the use of sanctions in this case fits my definition of war. This does not mean that the use of sanctions against Iraq was therefore wrong, but it does mean that Iraq would have been justified in viewing themselves as belligerents in a war with the United States8 during the time the sanctions were imposed, and that Iraq had a right to fight back against the sanctions.
As with the lawfare example, however, clearly identifying the legitimate targets against which Iraq could use defensive force is difficult and a full discussion of this question is beyond the scope of this chapter. The sanctions were authorized by the UN Security Council, and were carried out with the assistance of thousands of individuals and organizations, many of whom would not count as legitimate targets in a conventional war. However, the method of assigning responsibility that I discussed earlier can offer a useful first step in thinking about this case. The policy makers and officials most responsible for formulating and executing the policy bear significant responsibility for the harm caused by the sanctions, so a case can be made for considering them legitimate targets. In addition, other individuals who played an integral role in enforcing the sanctions (for example, inspectors whose role involved ensuring that sanctioned goods were not permitted to enter Iraq) may also be legitimate targets depending on how central their role is to the enforcement of the sanctions. Other possible legitimate targets could include buildings (not necessarily in Iraq itself) such as warehouses that were used to store goods banned by the sanctions. In those cases, if those structures played a central role in the enforcement of the sanctions, they would count as legitimate targets also.
In his contribution to this volume, George Lucas outlines the history of cyber-attacks, from early pranks and “cyber vandalism” (Lucas this volume, 86) to sophisticated attacks involving “vigilantes” targeting government and commercial service sites as a form of political protest, or in order to expose perceived wrong-doing (Lucas this volume, 87). None of these attacks would, in my view, constitute war. As with economic sanctions, cyber-attacks meet my definition of war only if an organized group orchestrates such attacks and inflicts intense hostilities in a context in which there is no third party authority able to enforce its jurisdiction. As yet, no cyber-attacks fit this description.
However, this may change. As Lucas notes, “many states are resorting to massive cyber attacks” instead of using more traditional channels (such as diplomacy or trade negotiations) to “pursue political objectives against other states” (Lucas this volume, 88). Examples of such supposedly state-sponsored attacks include the attack on Sony Pictures (attributed to North Korea), and the attack on US financial institutions by an organization calling itself “Cyber Fighters of Izz ad-Din al-Qassam,” a group linked to Iran (Lucas this volume, 89). If cases like these are in fact state-sponsored cyber- attacks orchestrated by organized groups, this raises the possibility that such attacks could increase in frequency and intensity. However, while cyber-attacks such as those described above could be launched by organized groups in a context where there is no effective third-party authority, could such attacks cause sufficient harm to meet the criterion of intense hostilities?
Lucas notes that cyber-attacks rarely if ever cause physical damage to people and property. Instead, “the [cyber] conflict results in loss of information, loss of access to information processing, and an inability to carry out essential activities (such as banking, mining, medical care, trade, and commerce) that rely largely upon information processing”. Thus, although there has been no “cyber Armageddon” involving massive disruptions of essential services, the cyber-attacks that have occurred are “quite destructive and malevolent ... capable of causing massive social upheaval, or bringing about a ‘death by 1,000 cuts’ through pilfering of industrial or state secrets, or by interference with trade, commerce, finance, medical care, and transportation” (Lucas this volume, 91–92).
Given that cyber-attacks could seriously interfere with essential services such as medical care and transportation, it is possible that cyber-attacks could inflict intense hostilities, even if little physical damage is done. Since I define hostilities to include acts that inflict “substantial and ongoing damage to the lives and welfare of individuals, and the infrastructure, environment, and basic functioning of states and communities,” cyber-attacks that seriously affect medical, transportation, and financial systems could cause this level of damage to the welfare of civilians and the functioning of the state. In such cases, the “combatants” would not be soldiers but the computer experts responsible for carrying out the attacks, and those in charge of authorizing and coordinating the attacks. However, because of the likelihood that cyber-combatants might be operating from primarily civilian locales, as with the lawfare case, I would argue that defensive force would have to be limited to attacks on individuals as much as possible. Of course, if cyber-attacks were launched from military installations, then such installations could be considered legitimate targets.
While the above examples refer to state-sponsored attacks, it is possible that non-state groups could also wage war through cyber-attacks, if such groups did not fall under the jurisdiction of an effective authority. However, it is much less likely (although not impossible) that an individual could wage war in this manner. This is not because an individual couldn’t cause extreme harm through cyber-attacks, but because in most cases there would be an effective authority with jurisdiction over that individual, and thus the breakdown of effective authority that is characteristic of war would not be present.
In this chapter, I have argued in favor of a definition of war that I believe captures the nature of war and accounts for war’s distinct legal and normative status. Given that one of the important roles played by the law of armed conflict is to minimize the destruction caused by war, my definition would restrict use of the term “war” to conflicts that exist in a context in which authority has broken down, and where the welfare of all those affected is seriously threatened.
In applying my definition to three examples of unarmed conflicts, I have shown that it is possible that the use of non-kinetic methods could, in rare cases, meet the criteria of war. Through expanding the idea of “hostilities” to include ways of harming that do not rely on physical violence, and through exploring how categories such as combatant and civilian might apply in unarmed conflicts, my definition allows a better understanding of the legal and normative implications of the use of unarmed force.
« 02 »
Coercion, Manipulation, and Harm:
Civilian Immunity and Soft War
For canonical just war thinkers, war was a scourge. War destroyed lives and communities, and warped the souls of its participants. But war was not humankind’s only affliction, and some of these other injustices – especially the breakdown of civil order – were deemed much worse. When, on the balance of things, the use of coercive force could lead ameliorate injustice, thinkers within the historical just war tradition permitted the recourse to war as a corrective measure. But they were no idealists. They did not believe war could be eliminated. Instead, canonical just war thinkers shared with realists a profoundly pessimistic view of the human condition and moral progress (Gilpin 1981; Syse 2007). They did hope, nevertheless, to define limits on when coercive force could be used (what we now call ad bellum principles), as well as some limits on how such force could be used (what are now termed in bello principles).
I, too, doubt that war can be outlawed or completely tamed. War is a fact of life in an international system lacking both an effective mechanism for resolving inter-state conflicts and an efficient means for reining in rogue states (Augustine 1984; Hobbes 1996; Morgenthau 1946). Faced with war’s inevitability, my primary concern is how its most pernicious effects on noncombatants can be reduced. For this reason, in the case of soft war, I am willing to permit nonlethal coercion of civilians, by targeting their property, if the alternative is the use of lethal tactics. While civilians’ lives and bodies should never be attacked directly and intentionally, nonlethal attacks may be permissible within a tradition that has historically not treated coercion as mala in se.
In what follows, I develop an argument in favor of permitting limited, nonlethal attacks on civilian property. To do so, I adopt a canonical just war framework, following in the footsteps of Augustine and Aquinas, to think through some tough moral questions that soft war tactics pose for civilian immunity. I believe that the moral nature of war is essentially unchanged across time – and that if we tell ourselves that war today is more civilized and restrained than it was at some time in the past, it is only because we have learned “more effective ways of using force than the crude expression of instinct” (von Clausewitz 1984, 76). Arguments similar to the one I build in this chapter could be developed within other just war traditions – the Islamic and Hindu traditions, for example. In this chapter, however, I’ve chosen to work within the historical Western just war tradition. This approach reflects my realist roots. The Western just war tradition is the language of the great powers (Sjoberg 2014, 153). It is also the language of international law (Walzer 2002, 927). This is especially true of the military interpretation of the laws of armed conflict, which takes military necessity – rather than civilians’ human rights – as its starting point (Luban 2013). The historical just war tradition, likewise, was interested in mitigating the horrors of war, while keeping the rules simple and practical enough to be feasibly applied on the battlefield. Thus, an ad fontes approach is not so much a way of looking back, as a way of looking forward by bringing a more realistic portrayal of the dilemmas of warfare back in. As I see it, the choice is not between no war and war, nor between a completely bloodless war and total annihilation. Certain kinds of injustices will continue to make war an unfortunate necessity for the foreseeable future. As the means of warfare change, however, we must continuously think about whether our current in bello norms will permit us to resolve such conflicts quickly, and with the least possible loss of life, especially for civilians. Certain soft war tactics seem to offer new ways of doing just that, even though they may not be deemed acceptable in a humanitarian reading of international law, or from a revisionist just war perspective.
Although I argue that certain types of coercion and manipulation using soft war tactics may indeed be morally permissible, I also assert that the use of such coercion must be strictly limited. Coercion that relies on the threat of deadly harm is impermissible. So too is coercion that leads inexorably (albeit slowly) to civilian injury and death. For this reason, coercion that seriously undermines civil order is also impermissible. Lastly, coercion – like any other war tactic – must only be used with the end of peace in mind. Thus, coercion that would make post-war reconciliation significantly more difficult should be eschewed.
To develop the case for permitting limited nonlethal attacks on civilian property, I proceed in five steps. First, I briefly define what I mean by soft war. Second, I defend the basic underlying claim of canonical just war thinking: that coercion is permissible to achieve order. Third, I demonstrate that the traditional view of noncombatant immunity was far narrower than it is today. Fourth, I suggest that three broad just war principles – necessity, order, and proportionality – can do a lot of work for us as we try to reason through what sorts of soft war tactics may be allowable. Lastly, I conclude by thinking through several scenarios in which soft war attacks affecting civilians may be impermissible, possibly permissible, or likely permissible.
The term soft war is used in two distinct ways. Sometimes, it refers to a category of political action that falls somewhere between “normal” state relations and all-out war. As such, it can include such diverse practices as coercive diplomacy, sanctions, and isolated cyber-attacks. Alternately, soft war can refer to a set of tactics. In this sense, it describes non-kinetic, or sometimes simply nonlethal, means. Such tactics include cyber warfare and information warfare. The phrase is reminiscent of Nye’s “soft power,” which refers to “the ability to shape the preferences of others through attraction, rather than force,” and some soft war tactics do just that (Nye 2004, 5). Propaganda, rumors, control over the media’s storyline – all forms of information warfare – can be used to attract segments of the enemy’s population to our side. Other means of soft war, though non-kinetic, nonetheless aim at hurt. The use of sanctions to cripple the enemy’s economy, for example, or the use of cyber-attacks to shut down the enemy’s power grid do not strive to attract the other to our position, but rather to coerce him. The potential for soft war to cause real harm means that in bello limits matter, just as they do in conventional war.
In this chapter, I will take soft war to be a form of warfare, even though some of the tactics in question – sanctions, for example – are not contemporarily treated under the law of war. Although the demarcation line between war and peace is of great importance in Walzerian just war thinking and international law, this division has historically not been of particular concern. After all, within the canonical tradition, the permissibility of coercion on both the domestic and international levels relied on the same general principles. While revisionist just war thinkers also blur the line between policing and war, their approach differs from the canonical just war framework I am using here. For revisionists, the desire to consistently protect individual human rights motivates a concerted effort to establish a single set of ethical principles for the use of force and coercion across all contexts from the bottom up. By contrast, within the historical just war tradition, policing and war run parallel because both deal with the leader’s obligation to maintain order both at home and abroad in a disorderly world.
Order and Coercion
Within the canonical just war tradition, coercion is a permissible tool of statecraft when it is used for the purpose of maintaining or restoring a just order. For Augustine, order – a kind of earthly peace predicated on balancing the wills of many within the commonwealth – was a “gift of God” (Augustine 1984, 600, 877). We focus so much on justice these days – especially those of us in academia – that we tend to forget the value of order. But if we think about the misery generated by the collapse of order in places like Iraq and Syria today, we can get some idea of why early just war theorists held a deep fear of disorder. After all, we cannot pursue any sort of good life without a fundamental basis of order.
The problem is that order is hard to come by in a world full of centrifugal forces. Sounding like a classical realist, Augustine argues that “all men desire to be at peace with their own people, while wishing to impose their will upon those people’s lives. For even when they wage war on others, their wish is to make those opponents their own people” (Augustine 1984, 867). The corrupted nature of mankind after the fall means that everyone seeks domination (Augustine 1984, 604).
And so, polities work to achieve order, through the work of judges and executioners, statesmen and soldiers. Such work is essential: “the duty of anyone who would be blameless includes not only doing no harm to anyone but also restraining a man from sin or punishing his sin, so that either the man who is chastised may be corrected by his experience, or others may be deterred by his example” (Augustine 1984, 876). Order requires some degree of justice, albeit only of a very thin sort, as evidenced by just war thinkers’ tendency to encourage people to endure tyranny rather than revolt (Aquinas 2002, 18; Augustine 1984, 599, 870; Morkevičius 2013, 401).
But order also requires some degree of coercion. Augustine thus explains that even those professions that seem the most heartless – the torturer and the executioner – can actually be motivated by love (Augustine 1984, 860). Love operating in the realm of necessity judges and tortures and punishes in order to find out the truth and restore a just order. Just as a state has the right (and the duty) to maintain order domestically, it also has the right to do so in its relationships with other states (Anscombe 1961, 47). Aquinas makes it clear that the same logic is operating in both contexts, declaring that the prince must use force both “in defense of the commonwealth against those who trouble it from within” and “against enemies from without” (Aquinas 2002, 240). Ultimately, for both Augustine and Aquinas, it is “the injustice of the opposing side that lays on the wise man the duty of waging wars” (Aquinas 2002, 240; Augustine 1984, 862). Thus war, like policing, is a coercive tool used by a state in the pursuit of order.
The international order is considerably thinner than the one we aim for domestically. Nonetheless, states seek an Augustinian order in international society, in which “life will be in some measure secure against violence resulting in death,” where “promises, once made, will be kept,” and where “the possession of things will remain stable to some degree” (Bull 1995, 4). Domestically, the strength of social and political institutions encourages individuals to govern themselves (Foucault 1995, 202–203). Internationally, however, institutions are considerably weaker. Thus, Morgenthau argues that when states do abide by the rules of international law, they do so not because they believe they “ought to,” but rather because they share common interests “backed by power as a last resort” or because the balance of power deters states from upsetting the order of the system (Morgenthau 1958, 226). Put differently, international order relies on the rewards and punishments accorded to those who do – or don’t – live by the rules (Gilpin 1981, 9).
The logic of the just war tradition is that the use of force is warranted only in response to a specific wrong committed by the other. Consequently, force can only intentionally be used against those committing the wrong. The tradition thus clearly distinguishes between those liable to harm because they are participating in the harm, and those not liable because they are non-harming. The Latin term innocent, in this case, does not refer to a moral category, but instead means non noceres, or not harming or not injuring (Slim 2003, 499).1
Interestingly, for Augustine and Aquinas killing the innocent does not come up when discussing the problem of war. Augustine reports that sometimes judges unintentionally torture and even condemn the innocent, but because such tragedies arise out of a lack of information rather than a desire to harm, he does not find the judges to be culpable. Aquinas does spend a chapter in the Summa theologiae discussing the problem of killing the innocent – but it is his chapter on homicide, and not the chapter on war. (Indeed, it is in this context that he develops the famous principle of double effect.) The idea that innocents caught up in war must be protected arose from the Peace of God movement in the early Middle Ages, and was already canon law by Aquinas’ time. Thus, his decision to deal with innocents only in his homicide chapter is significant – it squarely associates the killing of innocents with murder.
De Vitoria, writing some two hundred years later, specifically melds Aquinas’ concept of double effect with the principle of noncombatant immunity. Like his predecessors, de Vitoria rules the killing of innocents unlawful. Again, his discussion blurs the line between law enforcement and war: “within the commonwealth it is not permissible to punish the innocent for the crimes of the evil, and therefore it is not permissible to kill innocent members of the enemy population for the injury done by the wicked among them” (de Vitoria 2003, 315). De Vitoria carefully identifies the innocent as individuals who are outside the sphere of political or military influence, including children, women (unless they are otherwise implicated), travelers, clergy, and monks “unless there is evidence to the contrary or they are found actually fighting in the war” (de Vitoria 2003, 315). This view of innocence is not far from Walzer’s, which creates a class of “nonparticipating civilians,” who are not only not soldiers, but also do not “make what soldiers need to fight” (Walzer 2000, 30, 146). It is, however, rather distant from the revisionist view, which is concerned with individuals who make themselves liable to violence by posing a threat to others.
On Killing and Other Harms
Civilian immunity in the classical just war tradition is expressed by the in bello principle of discrimination, which demands that civilians never be the direct targets of harm. But what exactly is harm? Clearly, not all harms are deadly, as the contemporary literature is replete with injunctions to choose the least harmful course of action (Kamm 2004, 659; Lazar 2014, 57; McMahan 2011, 152). Harm frequently describes property and economic damage, and even the risk of psychological harm. Arquilla finds that deliberately targeting “civilian economic or other assets” violates noncombatant immunity (Arquilla 1999, 395). Gross takes harm to include “not only death and injury directly caused by military action, but also indirect effects of war: destitution, disease, lawlessness, and insecurity”; at the broadest extent this includes “using [civilians] without their consent or against their will to procure one’s ends” (Gross 2005/2006, 561– 562). And when Walzer asserts that “it is wrong to threaten what it would be wrong to do,” he adds psychological threats to the list of impermissible harms (Walzer 2004, 48). Put simply, contemporary just war thinking, in both its Walzerian and revisionist strands, has inherited a view of harm rooted in the individual human rights tradition, and reflective of contemporary international humanitarian law. This perspective prohibits harm against innocent noncombatants.
The historical just war tradition was also very specific about what harm entailed, namely, unjustly taking the life of another. Because harm was historically understood as the use (or threatened use) of lethal force, the tradition did not forbid other forms of coercion and manipulation. Thus, although the tradition was concerned with limiting the use of lethal force against non- combatants, it was relatively sanguine about other sorts of harm that could befall them. Augustine and Aquinas say nothing at all about property damage in war. De Vitoria does – but not in the way we might expect. Instead, he justifies the destruction of homes and farms and the seizure of personal property as appropriate means of war (de Vitoria 2003, 317). Arguing that the goods produced by the common people are necessary for the enemy’s war effort, de Vitoria declares that destroying or confiscating them may be a vital part of weakening the enemy’s forces.
Thus, the tradition suggests that it may be morally permissible to target civilian property. This is clearly in contravention of international humanitarian law, particularly Additional Protocol I. I think there is something to the moral intuition that undergirds humanitarian law (and contemporary just war thinking) that forbids directly targeting civilian property in war. It is far too easy to imagine how a more permissive approach to civilian property could lead to disaster. This is especially true if we imagine the fire bombings of World War II, and the logic that such massive destruction was necessary in order to shut down the militarized economy of Germany and Japan. Indeed, the claim to be aiming at “economic targets” belied a more inconvenient truth – the deliberate targeting of the innocent in the hopes of undermining morale (Anscombe 1961, 59).
But carpet bombing may not be the best analogy for targeting civilian property using soft war tactics. After all, many soft war tactics do not cause physical destruction of property. Many do not cause immediate physical harm to persons, either. If war is inevitable, and if we aim to reduce the suffering of noncombatants, we must seriously consider the possibility that targeting civilian property may be a less evil way to go about the business of maintaining and restoring order.
Within the Limits: Necessity, Order, and Proportionality
Drawing on the idea that, historically, immunity meant that nonparticipating noncombatants could not be directly targeted with lethal force, I argue that while deliberate and permanent destruction of civilian property is morally impermissible, soft war tactics that passively use or even temporarily disable civilian infrastructures may be permissible. Other forms of coercion, such as putting pressure on civilians by limiting access to certain goods, may also be permissible, so long as the denial of such resources will not lead to lethal consequences.
However, the possibility of directly targeting civilian property in this way must be limited by three other principles: necessity, order, and proportionality. Necessity and order are not usually explicitly mentioned in accounts of in bello principles, but they undergird the tradition’s deeper logics. Both necessity and order limit our actions so that our tactics do not undermine the war’s ultimate aim, which must always be to secure peace. Proportionality, the most familiar of the three, figures prominently on most lists of in bello just war principles. Here I use it slightly differently, to apply to direct attacks, and not only to collateral damage.
If wars are fought with peace in mind, force and coercion should be employed only to the extent necessary. The reason is quite simple – excessive use of force renders peacemaking more challenging. When innocents are threatened, at least some of them are likely to fight back (either as individuals, or by joining military or paramilitary forces), and they may even be justified in doing so. Although Augustine and Aquinas denied individuals the right to self-defense, de Vitoria did recognize it in the context of resisting a private (i.e. criminal) attacker. Later, Martin Luther made use of the concept to justify limited resistance to unjust authorities – namely, by defending one’s person, family, and property (Luther 1974, 136, 139). Even if we don’t accept their armed resistance as justified, the transformation of innocents to combatants under duress expands the scope of the conflict. After all, the deaths of innocents – even when unintentional and indirect – harden hearts and make reconciliation more difficult.
Thus, to prevent war-fighting from rendering peace impossible, the principle of necessity limits the use of force to militarily significant targets. More than this, it requires that any specific target be necessary in itself for the war effort: successfully prosecuting the war effort would be frustrated without it. This particular view of necessity is reflected in international law, which limits attacks to military objects whose “destruction, capture, or neutralization” would offer a “definite military advantage” (AP I, 52(2)). As Walzer explains, we may even consider attacks on civilian industries that directly contribute to the war effort – if their production cannot “be stopped, or their products seized or destroyed, in some other way without significant risk” (Walzer 2000, 144).
Necessity is frequently used this way in the canonical tradition. Aquinas argues that even in cases of personal self-defense, it is “unlawful” to use “more violence ... than is necessary” (Aquinas 2002, 264). Similarly, de Vitoria only permits the recourse to double effect in war as an exculpatory principle if the attack “advances a just war that cannot be won in any other way” (de Vitoria 2003, 315). Likewise, Vitoria cautions “if the war can be satisfactorily waged without plundering farmers or other non-combatants, it is not lawful to plunder them” (de Vitoria 2003, 317). So even if we open the door to the possibility of soft attacks on civilian property, we can only go through it if such an attack is truly necessary to our war effort.
The overarching principle of order also limits the targeting of civilian goods. If war is fought for the aim of peace, attacks that seriously disrupt order in certain ways are morally impermissible. First, attacks that would make peace more difficult to restore post bellum – by violating trust, for example – should be eschewed. This includes tactics that make the attacker appear to be an untrustworthy negotiator, such as false flag attacks or faked surrender. Second, attacks that induce chaos within the opposing state violate this principle. Chaos is not mere disorder, but rather total disorder that constitutes a humanitarian disaster. The UN office for the Coordination of Humanitarian Affairs defines such humanitarian crises as “complex emergencies” that lead to “total or considerable breakdown of authority” (UN OCHA 2015, 11).
Such chaos can either be political, as when a strategy generates a power vacuum that leads to the complete breakdown of law and order, or economic, when it completely cripples the systems of production or trade. In the first case, widespread violence ensues; in the latter, widespread malnutrition and starvation. Both scenarios are likely to displace large numbers of people. The nature of an attack that would generate such a humanitarian crisis will vary according to the target’s resilience and vulnerability. States with strong state capacity will be better able to absorb and mitigate the effects of attacks on civilian property, but weak states may find themselves utterly unable to do so.
Necessity and order work together to tell us what may be targeted in a general sort of way, but proportionality helps us to figure out if a particular target may be attacked using a particular tactic. Quite simply, the in bello proportionality criteria ask us to weigh the harms of a necessary attack against the goods it is expected to achieve. Traditionally, proportionality modifies the amount of indirect harm we may permissibly cause civilians when we directly attack a military target (but unintentionally harm civilians at the same time). But if the aim of war is peace, then it makes sense we should wish to account for proportionality even in direct attacks, especially since it is civilian property we are considering harming.
Weighing the proportionality and necessity criteria together leads naturally to a consideration of alternatives. How else could a particular objective be accomplished? Could it be done in a way that harms fewer people, particularly fewer noncombatants? In the case of soft war, this is particularly interesting. The possibility of exercising coercive power without the use of kinetic force (and possibly with less deadly results) affects the outcome of the proportionality calculus in important ways, as the following section will explain.
Cyber Warfare, Information Warfare, and Sanctions
In this final section, I work through what the traditional concept of innocence – as mediated by necessity, order, and proportionality – might mean for determining what sorts of targets are morally permissible using various sorts of soft war tactics.
As we have seen, the traditional concept of innocence focuses on protecting people, not property. Nonetheless, the prohibition on targeting innocents with deadly force logically implies that any civilian property that is essential for human survival cannot be directly targeted, for any reason. Such attacks are not only indiscriminate, but are also disproportionate, because no amount of wrong suffered can morally justify directly targeting noncombatants’ lives. Thus, food supplies, crops and livestock in the field, markets, and housing are never legitimate targets. De Vitoria is simply wrong to suggest that goods and infrastructure may be targeted because they are also used by the military. His view leaves no space for civilian life. Indeed, contemporary international law makes this clear, prohibiting attacks on objects “indispensable to the survival of the civilian population” (AP I, 54(2)).
Here, Walzer’s distinction between the production of goods soldiers need as persons and goods soldiers need as soldiers is useful (Walzer 2000, 146). Food and medicine sustain soldiers’ bodies, but those bodies are fundamentally human. Such vital necessities cannot be targeted. But guns and tanks and warplanes sustain warfare, and hence can be targeted, even at the site of their production. Of course, this distinction is fuzzier in practice than it is in theory (Fabre 2009). Despite the interconnectedness of modern systems of industrial production, preserving this somewhat forced distinction is worthwhile. While those seeking to blur this division today intend to protect civilians by complicating our understanding of the divide between civilian and military spheres (raising the specter that modern war may never be morally permissible), in practice this line of thinking is apt to backfire. As long as military planners believe attacking the enemy’s war-making capabilities is an efficient way to win wars, industrial production will come under attack. If we accept – whether as realists or traditional just war thinkers – that war is tragically inevitable, we must aim to elucidate in bello principles that are realistically practicable.
Targeting essential goods (or the means of their production) directly is to target civilian lives. And so the line must be drawn here. In the soft war context, this means that sanctions may not restrict civilian access to necessary imports of food and medicine. Energy supplies may be interrupted, to drive up costs, but cutting them off entirely would be impermissible in most cases, as modern societies are dependent on oil, gas, and electricity for heating, for refrigerating food and medicine, and for purifying water supplies. While the deaths that result from such sanctions may not be as quick as the deaths caused by an exploding bomb, they are equally direct (Gordon 2010). Certainly, a responsible state could try to ration goods to be sure that the most vulnerable do not suffer more than anyone else, but increasing globalization has left few states in a position of being self-sufficient in terms of agriculture and energy. Sanctions imposed gradually over a significant length of time do give states a chance to reorganize their domestic production, but such sanctions are significantly less likely to be effective, and hence are unlikely to meet the necessity test (Haass 2002, 99). But the crux of the matter is this: Even if we could imagine a scenario in which we could impose sanctions on essential goods for a short time, stopping before a humanitarian crisis emerges, it would still be unjust to target such goods. In doing so, we are threatening civilians with death – even though we know we don’t intend to carry through with it – and this is impermissible (Shue 2016, 73–74).
Likewise, infrastructures necessary for sustaining civilian life may not be targeted in cyber warfare. Cyber or electromagnetic pulse attacks that would shut off the electrical grid are impermissible due to their effects on medical and sanitation systems. Cyber-attacks that disable the electrical grid are potentially reversible, but nonetheless should be eschewed as the consequences to civilians (especially over the medium to long term) of disrupting the flow of power can be quite grave (Shue 2016, 302). Similarly, cyber-attacks that would lead nuclear plants to meltdown or dams to overflow would be tantamount to targeting civilian lives, even if their deaths were (technically) only incidental to the initial attack.
Furthermore, any cyber-attack that would destroy medical equipment or medical information storage is impermissible. More subtly, cyber-attacks that would delete medical information from local servers, holding it for ransom, are similarly impermissible. Holding vital medical data hostage is akin to holding civilians hostage, by hindering the ability of their doctors to provide them necessary health care. Although these sorts of attacks ostensibly target property, not persons, the humanitarian effects are so widespread and devastating as to render them impermissible. Furthermore, such attacks are unlikely to meet the necessity criterion. Just as broad- based sanctions (or for that matter, carpet bombing) are unlikely to effectively coerce a state into changing its behavior, electrical grid attacks are unlikely to be effective, as most militaries have backup power sources (Bayles 2001, 52). Similarly, military computer systems are more likely to be secured – or to have backup systems – than civilian ones.
If medical and sanitation facilities are vital to civilians’ physical lives, historical archives and online libraries are essential to their cultural lives. Just as The Hague Convention and Additional Protocol I protect cultural property in armed conflict, we should eschew targeting cultural objects on the internet. Some of this content is “born-digital,” existing only in digital form – such as digital photographs and recordings, as well as documents and archives stored only electronically (Dinniss 2012, 232). Digital reproductions of physical works, as well as libraries and archives that exist both in physical and digital forms, are also important to protect, as they may become the only record of important objects of cultural heritage if the original is ever destroyed. Such valuable cultural resources play an important part in people’s stories about who they are, and as such, should never be permanently erased.
Many of the tactics of information warfare are also likely to be impermissible from within the traditional just war framework. Lying is impermissible, although failing to disclose information or selectively disclosing information is not. Lies make trust impossible, and thus hinder the possibility of reaching a negotiated peace. As Bonhoeffer put it, “‘falsehood’ is the destruction of, and hostility to, reality” (Bonhoeffer 1997, 163). We cannot come to agreement when we share no common foundational truths. Indeed, it can be argued that the Versailles peace process failed partly because of its inability to produce “a truthful accounting of the war’s causes and consequences, nor the affirmation of moral truths by victors of vanquished” (Lu 2002, 21). The recognition of the importance of truth to peacemaking has led to the development of numerous truth and reconciliation commissions in post-conflict societies worldwide. Reconciliation cannot happen without truth telling, but truth telling is more costly the more lies one has to confess. To put it another way, the problem with lying is that it fundamentally undermines order in the present, and creates conditions that make the restoration of order in the future even more difficult.
The importance of dealing straightforwardly with the enemy is made clear in Augustine’s counsel to Boniface: “when fidelity is promised, it must be kept, even to an enemy against whom war is being waged” (Augustine 1994, 220). Yet Augustine also declared that “[s]uch things [as ambushes] are legitimate for those who are engaged in a just war ... it does not matter at all, as far as justice is concerned, whether he wins victory in open combat or through ruses” (Augustine 2006, 83). The reason is that ambushes, unlike lying, involve withholding information rather than providing false information. As Aquinas explains, certain types of ambushes do not actually constitute violations of the truth-telling principle. “There are two ways in which someone may be deceived,” Aquinas explains, either “by being told something false, or by not having a promise kept” or alternatively “because we do not reveal our thoughts or intentions to him” (Aquinas 2002, 246). The first type of deception is always wrong in Aquinas’ view, because it involves a breaking of faith with the other. The latter is not inherently wrong, because there is no requirement for us to reveal all our plans to everyone.
Lying in the context of information warfare can take several forms. The media can be used to broadcast factually incorrect descriptions of events, including misrepresenting the agents behind attacks, grossly exaggerating the number and scale of attacks, or even simply inventing attacks. More subtly, social media can be used to spread patently untrue rumors for the sake of disrupting support for a particular regime, for discrediting the regime’s opponents, or fomenting disorder by encouraging various social groups to view each other as threats. Even worse, such information attacks could be carried out in a doubly dishonest way. Beyond the disingenuous content, the sources of the information could also be misrepresented – enemy government agents could pose as friendly co-citizens on social media, for example.
These sorts of disinformation campaigns, however, are unlikely to meet the just war criteria laid out in this chapter. The tradition’s concern with ordinary life and the civil order – as expressed in the requirement to aim at peace – explains why information warfare that spreads deliberately false information to the civilian population is impermissible. This is particularly the case when a state launches the informational equivalent of a false flag information attack. A case in point would be Russia’s alleged involvement in generating false news reports during the summer of 2014. Russian news media picked up stories reportedly covered by local Ukrainian Russians, in which individuals claiming to be Ukrainian Russians described horrific acts of violence against civilians allegedly committed by ethnic Ukrainians. Such wide-scale information warfare “[reinvented] reality, creating mass hallucinations that then translate into political action” (Pomerantsev 2014). When consumed by local Ukrainian Russians, this news coverage only inflamed tensions, making peaceful reconciliation more difficult. Because civil society is based on trust, lying to or otherwise manipulating the public is highly disruptive of domestic order. For this reason, even if it were very limited effects in terms of fatalities – as in the Crimea, for example – it is morally impermissible. Put differently, if indiscriminate sanctions or cyber-attacks destroy the physical infrastructure civilians need to survive, lies and false flag attacks devastate the social infrastructure on which civilians depend. These types of attack sow such wide- reaching disorder that they are almost certainly disproportionate in all cases.
It is clear enough that directly targeting goods or infrastructure essential to civilian life is morally wrong. But what of cases where there is an intervening variable? Targeted sanctions pose just such a case. Targeted sanctions, or “smart” sanctions, aim to coerce the opponent directly, by blocking arms sales, freezing the assets of key leaders, and by limiting access to dual-use items. The latter are goods that are normally used by civilians, but which have military applications. In principle, by targeting dual-use goods, noncombatant suffering can be minimized or avoided. In practice, however, restricting access even to dual-use goods may lead to noncombatant suffering on a broad scale, as Joy Gordon makes clear in her contribution to this volume. One key example is chlorine, which can be used for chemical weapons production, but is also an essential part of many sanitation systems. The inability to procure chlorine in sufficient amounts increased the prevalence of various infectious diseases in Iraq under the sanctions regime imposed in 1991 (Arya and Zurbrigg 2003, 10). The permissibility of such sanctions hinges on the proportionality of the harm suffered by non-combatants. This, in turn, depends partially on the capacity (and willingness) of the target state to adapt in ways that safeguard its civilians.
The intent of the sanctions-imposing state also matters, because it is never permissible to intentionally target civilians’ lives. If this civilian suffering is not the intent of the sanctions-imposing state, it is not inherently morally culpable, under the logic of double effect. Caution must be exercised here, due to the problem of double intent. Restricting access to dual-use goods is meant to constrict a state’s military prowess, but those who impose sanctions often also hope that economic pressures will coerce the population of their opponent into resisting – and perhaps overthrowing – their regime. However, sanctions that threaten civilians with death may be not imposed to coerce them into revolting against their government.
However, if the intent does not involve this type of threat, but simply aims at restricting a state’s access to militarily sensitive items, the use of sanctions may be permissible. Proportionality then becomes the relevant consideration. It is possible for states to adjust to sanctions regimes in ways that leave the economy largely intact and thus spare the civilian population from the brunt of the effects.
Regimes that fail to do this are failing in their responsibility to protect their population. If the regime is incapable of responding in this way – if it is a failed or failing state, which lacks the relevant state capacities – then the imposer of the sanctions may bear even more responsibility. The fact that there is an intervening variable between the actor imposing the sanctions and the outcome of the sanctions does not in itself affect the proportionality calculus. If the targeted state can reliably be predicted to fail to deflect the costs of the sanctions from its own civilians, or if after their imposition it becomes apparent that the sanctions regime will lead to widespread negative health effects, then the attack should be deemed disproportionate.
The logic of sanctioning dual-use goods applies metaphorically to the cyber world, as well. It may be permissible to use cyber warfare to target traditional telephone services and voice-over- internet protocols. On the one hand, such attacks are necessary if civilian and military communications run over the same lines. However, disabling communications infrastructure could lead to civilian harm, if, for example, individuals are no longer able to call an ambulance for help or to summon a fire engine. Practical matters, such as the density of the population and its distance from emergency response centers, must be taken into account. In some cases, such negative effects may be proportionate – after all, there are other (admittedly less efficient) ways of transporting injured individuals to hospital or getting the attention of the fire brigade. But the permanent destruction of communications infrastructure is less likely to be proportional. Short-term increases in emergency response time may be tolerable, but over the long term the civilian costs will mount. Thus, it may be permissible to temporarily shut down communications – perhaps as part of a broader, kinetic attack – but proportionality concerns suggest that the target state’s infrastructure should not be so damaged that it cannot repair it in good time. Permanent destruction of communications infrastructure would also be contrary to the aim of peace, as ultimately the inability to communicate effectively over the entire polity would undermine order considerably.
Nonetheless, it would seem other kinds of civilian property, which are not essential to survival, could morally be restricted, commandeered, damaged, or destroyed for military purposes. Sanctions on non- essential goods, for example, are likely to be proportionate. While banning the export of toys, chocolate, and wine to an enemy state may make life less pleasurable, the inability to obtain such items is not a risk either to survival or to social order. The same would seem to apply to music and films, sporting equipment, passenger cars, and the like. Such luxury sanctions are aimed at hurting the target state’s elite, and at hindering the regime’s “ability to offer supporters rent- seeking opportunities” (Drezner 2011, 100). Of course, such sanctions also affect ordinary civilians directly, but not with a threat to life and limb. Proportionality would not seem to be at stake, given the rather trivial nature of these goods. The more intractable question, however, would be whether such sanctions can possibly be effective. Unfortunately, the track record for targeted sanctions generating the desired policy outcomes has been disappointing at best (Drezner 2011, 102).
Some aspects of cyber warfare, however, are rather more parallel to conventional war than to sanctions regimes. For example, in conventional warfare, military vehicles are permitted on civilian roads. By analogy, cyber-attacks that transmit themselves (harmlessly) through civilian devices to target military ones – operating like the Stuxnet virus – are permissible. True, civilians may find in such cases that their goods are used to ends that are not their own. But it is hard to see how such coercion in itself disrupts the civil order to an unacceptable degree since the target is a military one. Proportionately, the disruption would seem to be less than if kinetic force were used. Thus, necessity is the most significant principle for evaluating this sort of passive use of civilian infrastructure. Presuming the chosen target is relevant to success in the war, this type of passive use of civilian infrastructure seems permissible.
In a similar way, conventional militaries are permitted to occupy civilian airports and other transportation infrastructure. Public halls can be taken over to house soldiers and store goods. Armaments factories can be disabled or destroyed. Accomplishing the same using cyber war tactics also seems to be legitimate. The possibility of accomplishing such aims without employing lethal force – and in some cases, without even permanently destroying the infrastructure – makes cyber warfare tactics used for these ends seem preferable to conventional means, particularly in terms of proportionality.
What about attacks on specifically civilian cyber infrastructure? If we accept that coercion, per se, is not what is forbidden by the tradition, then it would seem to be the case that civilian property can also be targeted. (Presuming, of course, that the attacks are nonlethal.) Social media networks used to communicate and organize civilians can presumably be shut down. In a similar manner, radio and television signals could be jammed, and internet news portals could be closed. Such attacks could meet the necessity criterion, if the enemy state is using the media to communicate with its supporters, to encourage resistance, or even simply to mislead its population.
Civilian banking could also be targeted, to coerce government and military officials whose funds also lie in civilian banks. Civilians, of course, do need access to their finances in order to live. The tradition’s concern with order means that an attack on the communications or financial sectors would predictably lead to the breakdown of domestic law and order, particularly if such a breakdown itself led to significant injury or death among the civilian population. (And it would be immoral to continue such an attack if the negative side effects became too widespread.) For this reason, it would seem to be impermissible to permanently wipe out civilians’ banking information – the effects would be too far-reaching. To shut down the banking system for several days, however, while deeply inconvenient, might be permissible. It would certainly have a coercive effect, but all things considered, would be less damaging to the civilian population then a conventional attack, the likely alternative.
Historically, the canonical just war tradition’s concern with sparing the innocent was limited to sparing their lives from direct attack. Reflecting our increased appreciation for individual human rights, contemporary just war thinking tends to embrace a broader view of non-combatant immunity that forbids many kinds of nonlethal coercion, including destruction of civilians’ property.
In contemporary liberal democracies, thick social bonds and robust institutions have created societies in which the state’s coercive aspects are less obvious for some of us. But international society lags far behind. Tragically, war remains inevitable. The alternative to soft war is thus not peace, but hot war. When engaged in a conflict that meets the ad bellum requirements of just war, it may be morally permissible – and perhaps, all things considered, morally better – to coerce enemy governments by directly commandeering, threatening, or even destroying civilian property, rather than killing civilians indirectly (and unintentionally) by engaging in conventional warfare.
Above all, it is important to remember that the means of soft war are nothing more than tactics. The fact that some soft war tactics may be justifiably used in bello if they respect the limits of necessity, order, and proportionality, does not mean that wars employing soft war tactics are necessarily more just than conventional ones. We must still ask – and perhaps even more persistently, given the seductiveness of nonlethal means of war-fighting – whether the wars we engage in are fought for just causes, and whether we have really tried to find peaceful ways to resolve our differences. Although the availability of less destructive means does affect the ad bellum proportionality calculus, we must be careful not to treat soft war tactics as a free pass, legitimizing any and all uses of coercive force. Put simply: the means cannot justify the ends.
« 03 »
Reconsidering Economic Sanctions
It seems that hardly a week goes by without an announcement that economic sanctions are to be imposed, or strengthened, in the context of either foreign policy or global governance. This is due at least in part to the sense that targeted sanctions (“smart sanctions”) have addressed many of the central objections that have been raised over the last two decades: that trade sanctions are overbroad, that sanctions may cause humanitarian damage, and that sanctions are often unsuccessful at getting the target state to comply with the demands made of it. But, I would argue, targeted sanctions have been disappointing in many regards; and many sanctions regimes do not even purport to be “smart.”
Economic sanctions typically involve the withdrawal of trade, although they may also include terminating foreign aid, blocking the use of currency, denying access to international financial institutions, and blocking access to humanitarian aid. While there may also be measures imposed as penalties or retaliation in the context of trade, this article concerns the use of economic sanctions only in political contexts.
In the twentieth century, both the concept and the application of economic sanctions have undergone such radical transformations that analyzing either their enduring features or their ethical implications is quite elusive – surprisingly so, since sanctions are a much-used and much-discussed tool of statecraft. At the end of World War I, economic sanctions underwent a conceptual transformation from being simply a form of warfare, serving the military interests of the parties to the conflict; to being a mechanism of peacekeeping, on behalf of the universal interests of the international community as a whole. During the Cold War, economic sanctions were heavily used, primarily by the superpowers, to express disapproval, or to exert influence or create pressure, by causing inconvenience or imposing additional costs on the economy of the target nation. Although moral claims were sometimes made – for example, to protest military aggression or undemocratic practices – they were invoked for the most part by individual countries acting on their own behalf, and in pursuit of their own policies. As a tool of international governance, economic sanctions effectively disappeared between World War II and the collapse of the Soviet Union, with two significant exceptions: The UN Security Council’s imposition of sanctions on Rhodesia and South Africa, both for the practice of apartheid, and for Rhodesia’s unilateral declaration of independence. The sanctions against South Africa were quite extraordinary in many ways: They genuinely represented a moral claim that transcended the competing interests and ideologies of the superpowers; they were imposed with the consent and encouragement of many leaders in the black community, which was affected by the sanctions; and the imposition of sanctions involved not only policies of state actors, but a broad-based grass roots movement in the West. They concluded with the dramatic end of apartheid, and the election of Nelson Mandela to the presidency.
By the late 1980s, economic sanctions were seen as an attractive tool for political pressure by widely diverse groups. For the State Department and the US administrations, sanctions seemed an ideal “middle route”: They provided a means of doing something that seemed more substantial than mere diplomatic protests and persuasion, but without the political costs of military intervention. Among political scientists there was a resurgence of interest and support, and a widely held belief that sanctions, if used correctly, could indeed be effective. The sanctions against South Africa had wide support from religious leaders and peace activists as a nonviolent method of achieving political change.
In the wake of Iraq’s invasion of Kuwait in 1990, all of these groups supported the use of sanctions as a nonviolent means of pressuring Iraq to withdraw from Kuwait. But it quickly became clear that the sanctions imposed on Iraq were of a different sort than had ever been seen before. The range of economic activities prohibited by the Security Council was the most extensive ever, outside of the context of siege warfare. The UN Charter required all member states to enforce the Council’s measures, and, consequently, the participation of the international community was nearly universal. Because the sanctions were extreme and comprehensive, they triggered a massive humanitarian crisis, bringing into question the ethical legitimacy of sanctions in general. Religious leaders, including Pope John Paul II, condemned the sanctions as inhumane. Anti-sanctions activist groups sprang up, accusing the Security Council of perpetrating human rights violations.
At the same time, with the Cold War over, the Security Council entered a period of much greater activism. Sanctions quickly became a significant tool in situations where the Council was responding to aggression, breaches of the peace, and threats to peace. In the 1990s, the Council imposed sanctions in another dozen situations, and continues to do so with some frequency.
In a sense, economic sanctions are problematic because, both conceptually and in concrete application, they are so variable. Economic sanctions are sometimes a trivial interference with business, causing little more than inconvenience. In other circumstances, the effects of sanctions are indistinguishable from those of siege warfare. Yet, while warfare is (at least in theory) subject to ethical limits, such as those articulated in Just War doctrine and international law, actions that are seen as nonviolent are not ordinarily viewed as something whose damage must be limited and monitored. Thus, to some extent, sanctions have eluded both the scrutiny and the criticism that would have been forthcoming if the same acts were seen as a form of warfare.
It is worth looking closely at the various transformations that economic sanctions have undergone over the last century, in regard to their legitimacy and uses, as well as the risks they present and the contradictions contained in the notion of economic sanctions.
The History of Sanctions
Although sanctions have long played a role in international disputes (often in the form of economic warfare accompanying military conflict), in the twentieth century they have come to be framed, at least by the major powers, as a peaceful means of exercising international coercion, offering an attractive alternative to the bloodshed of warfare. After World War I, in the Pact of Paris, the sixty-three signatory nations agreed to “condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy” (Kellogg-Briand Pact of 1928, Art. 1), and provided that all disputes shall be settled by “pacific means” (Kellogg-Briand Pact of 1928, Art. 2). There was a sense that war itself was on the verge of becoming obsolete.
In the post-World War I climate, economic sanctions were re- framed in terms of inconvenience and embarrassment, as an option that presented no ethical difficulties, especially by comparison to war.
The economic weapon, conceived not as an instrument of war but as a means of peaceful pressure, is the great discovery and the most precious possession of the League. Properly organised, it means the substitution of economic pressure for actual war ... In League of Nations so far as they can be applied, this means that for the blowing up of men to pieces with high explosives, the suffocating of civilian populations with poison gas, the dropping of bombs on crowded cities, the blinding, the mutilation, the brutalisation of myriads of men, we should be substituting merely a temporary dislocation and paralysis of trade, a rise in prices, some restriction of comforts and luxuries, the rationing of necessities, the ignominy of being exhibited as a moral outlaw. (Bertram 1931, 169)
There was at the same time an insistence that economic sanctions would be an effective response to military aggression, and that they would accomplish their goals quickly as well. Woodrow Wilson, in arguing that the United States should join the League of Nations, maintained that such a boycott was “more tremendous than war”: “Apply this economic, peaceful, silent deadly remedy and there will be no need for force. The boycott is what is substituted for war” (Foley 1923, 71–72).
The belief that war itself might become obsolete evaporated with World War II; and the hope that economic sanctions could stop aggression went with it, when the League of Nations’ attempt to impose sanctions on Mussolini failed to so much as give him pause in the annexation of Ethiopia. Nevertheless, when the Charter of the United Nations was drafted, economic sanctions were incorporated as an option available to the Security Council in addressing threats to the peace, breaches of the peace, and acts of aggression. Article 41 provides that The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions ... These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42 provides that where the Security Council finds these measures inadequate, it may use force to maintain or restore international peace and security. Thus, in the systems of international security envisioned by the League of Nations and the United Nations, economic sanctions were re-framed as “peaceful pressure,” in contrast to their historical role as the economic component of war. Nevertheless, they were considered “peaceful” not because economic sanctions are purported to do no material or human damage, but because sanctions are placed in comparison with “actual war.” From their origins as a curious combination of the “peaceful” and the “deadly,” economic sanctions have come to be seen as a middle route, something more substantial than mere protest or denunciation, yet not violent, in contrast to military intervention.
As a response to the two world wars, it is easy to see the humanitarian and pacifist motivation underlying the theory and institutionalization of economic sanctions. Yet even in those contexts, economic sanctions are described in odd, paradoxical terms: They are “peaceful” yet “deadly,” they are “potent” yet involve no force. They are civilized and humane, yet devastating and intolerable.
Sanctions after World War II
Although economic sanctions were available to the Security Council from the inception of the United Nations, for the most part, Cold War interests made it impossible for the Security Council to utilize the measures available to it under Articles 41 and 42. The veto power of the five permanent members of the Council effectively provided them with immunity, and at the same time, the risk of vetoes by the Soviets and the West largely paralyzed the Council.
But while the Security Council was almost completely inactive on this score, other nations, especially the United States, were not reluctant to use sanctions either unilaterally or in alliance with other nations. The United States was the “most prominent practitioner of peace time restrictions on trade and other economic transactions” since World War II (Leyton-Brown 1987, 225). Of 104 sanctions episodes between World War II and the end of the Cold War, “the United States was a key player in two-thirds. In 80 percent of U.S. –imposed sanctions, the policy was pursued with no more than minor cooperation from its allies or international organizations” (Elliott 1995, 51).
The “sanctions decade”1 began as the Cold War came to an end, while political scientists wrote about the efficacy of sanctions with renewed confidence, and human rights activists embraced sanctions as a peaceful alternative to military intervention. The sanctions imposed on Iraq proved to look very much like the boycott that was originally envisioned in the days of the League of Nations. They were an immediate response, on behalf of virtually the entire international community, which would have a devastating effect on the aggressor nation, even without military action.
The fact that the sanctions originated in the Security Council, rather than in an independent alliance of nations, meant that, under Article 25 of the Charter, the member states of the United Nations were bound to comply, and this broad international participation, in turn, meant that the sanctions would be far less porous than any sanctions imposed during the Cold War. Indeed, they were nearly comprehensive. Regardless of whether they succeeded in achieving their stated political objectives, the sanctions would in fact succeed dramatically at strangling the Iraqi economy. In doing so, they would generate a massive humanitarian crisis. A few months after the sanctions were first imposed, the bombing campaign of the Persian Gulf War destroyed nearly all of Iraq’s infrastructure: roads, bridges, factories, oil refineries, the electrical grid, telecommunications, and water and sewage treatment plants. The sanctions then prevented Iraq from rebuilding. The result was extensive malnutrition throughout the population; increased child mortality; and the collapse of the ability of the education and medical systems to meet the needs of the population (cf. Gordon 2010).
New criticisms of sanctions began to emerge, this time questioning not only their efficacy, but their ethical legitimacy. Where the literature of the 1980s sought to formulate criteria for the effective use of sanctions in achieving political goals,2 the 1990s saw the emergence of extensive discussions about how sanctions could be ethically employed, often adapting the framework of Just War doctrine, such as the principles of discrimination and proportionality.3
Targeted sanctions –“smart sanctions” – began in large measure as a response to the UN sanctions imposed on Iraq. In the wake of this humanitarian crisis, there were efforts in many venues to think about designing sanctions that would not have the humanitarian impact of broad trade sanctions, would impact the leadership rather than the population as a whole, and as a result would be more politically effective. These targeted sanctions included arms embargoes, financial sanctions on the assets of individuals and companies, travel restrictions on the leaders of a sanctioned nation, and trade sanctions on particular goods. Many viewed targeted sanctions as an especially promising tool for foreign policy and international governance: They do not entail the risks and costs of military intervention; nor do they raise the same ethical problems as broad trade sanctions. Many still see targeted sanctions as the best solution to a broad array of difficult situations.
Since the mid-1990s, UN sanctions have not, on their face, imposed broad measures prohibiting the target country from engaging in ordinary trade or prohibiting target countries from importing goods necessary for their industry or infrastructure. But it would be a mistake to think that targeted sanctions are used so consistently, and implemented so well, that sanctions overall no longer raise ethical concerns. While UN sanctions may now be “smarter,” sanctions imposed by nations against other nations can be explicitly indiscriminate, with broad prohibitions affecting shipping, banking transactions, the target state’s energy sector, imports in general, and exports of critical commodities. Recently, this has been true, for example, of Australia’s sanctions on Syria’s energy sector, Canada’s sanctions on Syria and North Korea, the EU’s sanctions on Iran, and the US sanctions on Cuba, North Korea, Burma, Sudan, and Iran.4
In addition, to the extent that states or institutions do use targeted measures, there continue to be considerable difficulties with each type, with regard to implementation, effectiveness, or humanitarian impact. Some of these are difficulties that may be resolved as these measures continue to be refined. Others are rooted in fundamental conflicts between competing interests, or intractable logistical challenges, which are likely to persist
Finally, it will be important to look closely at the legal issues raised by the listing of individuals or companies whose assets are frozen or seized, which are considered the most narrowly targeted measures in use. Although the lists do not directly affect large numbers of individuals, the arbitrariness of the Security Council sanctions committees has come to be seen by critics5 and by the European courts6 as so deeply problematic that the practice of blacklisting has brought into question the scope and even the legality of the Council’s powers under Chapter VII.
Nation-To-Nation Sanctions that are Not Smart:
The US Sanctions against Iran
While the United States has been extreme in its unilateral measures against Iran, US officials have often claimed that the sanctions are narrowly targeted to affect only the political and military leadership, and that their intent is not to harm the Iranian people. At a press briefing in 2010, a State Department official said that the United States is seeking to “target specific entities within the Iranian Government but not punish the Iranian people” (National Iranian American Council 2010). Secretary of State Hillary Clinton said “our efforts to apply pressure on Iran are not meant to punish the Iranian people, they are meant to change the approach that the Iranian Government has taken toward its nuclear program” (National Iranian American Council 2010). A senior US official said “We have never been attracted to the idea of trying to get the whole world to cordon off their economy” (National Iranian American Council 2010).
However, it is clear that the US sanctions are designed to interfere broadly in Iran’s trade, its energy sector, its banking system, and the state’s ability to function in any regard; and they have been very successful at this. As a result, the sanctions have done considerable harm to the population as a whole, in particular the political opposition to the regime, as well as women and other vulnerable groups. The sanctions measures imposed in 2012 were especially damaging, because they were comprehensive, targeting all sectors of Iran’s economy, in particular its oil sector (International Campaign for Human Rights in Iran 2013, 11). Bankruptcies, payoffs, and plant closures increased dramatically (International Campaign for Human Rights in Iran 2013, 13). Because Iraq was highly dependent on imports for its pharmaceutical industry, the healthcare system was severely affected (International Campaign for Human Rights in Iran 2013). There were significant increases in poverty, hunger, and malnutrition (International Campaign for Human Rights in Iran 2013, 14).
While these trends affect the population as a whole, they specifically increase the hardship on women:
Women are often the most victimized by sanctions because, as a group, they are the most economically vulnerable. Women have a harder time finding jobs, are among the first to get laid off, and have fewer workplace protections. As those primarily responsible for running their households, women face increased loads of stress trying to feed their families, obtain needed medication, and buy necessary goods amidst skyrocketing levels of inflation. A forty-five-year old housewife in Tehran reports, “In the last few months, I have bought very little protein such as meat and poultry and have also refrained from buying any clothes for the children.” At the micro-level of household economies, women bear the larger burden for managing their families’ survival. In Iran, as in all societies, increased militarism and violence at the global and national levels exacerbates inequalities between men and women. As societies become more militarized, so do the very citizens living within them; as fear, anxiety, and stress rise in the lives of ordinary people, so do patriarchal and violent responses to conflict and hardship in intimate life.
(International Campaign for Human Rights in Iran 2013)
The sanctions also triggered greater oppression by the regime, reducing the space for dissent and democratic opposition. The Iranian government had already engaged in repression in the face of the protests regarding the 2009 election, following further repression and human rights abuses in the face of the Green Movement. However, the sanctions gave the state additional justification. The International Civil Society Action Network noted that “the sanctions and threat of war allow the state to invoke ‘a state of emergency’ and in so doing suppress critics and voices of dissent” (International Civil Society Action Network 2012). One consequence of the banking sanctions is that Iranian students are in effect denied access to British and other universities, because there is no legal way to make financial transfers to pay their school fees (International Civil Society Action Network 2012).
Rather than starving the Revolutionary Guard (IRGC) and the Iranian regime, the criminalization of normal international commerce meant that much of the economy was tied to the black market or gray market. For a private company to import equipment and materials for production requires ties to the IRGC or bribes to the regime, with the result that the IRGC and the regime hold far greater control over the economy, and, as systemic corruption becomes the norm for commerce, gain far greater profits. The banking sanctions forced a growing reliance on a cash-based economy, where Iranians have had to use black marketeers to pay for medical or educational costs (International Civil Society Action Network 2012).
Thus, the sanctions on Iran were not just indiscriminate, but have in fact been counter-discriminate: They have given the state and military the opportunity to consolidate their control, while those who are the most vulnerable, and who have the least input into state policies, are affected most severely.
Where those imposing sanctions have in fact tried to craft them narrowly to target specific goods or individuals, the track record of sanctions in regard to effectiveness has been quite mixed. In 2002, Tostensen and Bull surveyed the difficulties with effectiveness and implementation of the various types of targeted sanctions. They attributed some of the problems to lack of experience in implementation, or underdevelopment of the political or administrative systems involved. As I shall now argue, more than a decade later many of these problems remain unresolved.
Arms embargoes can seek to block the flow of arms to an entire country, to particular groups or areas within a country, or to particular individuals or groups, wherever they are (Fruchart et al. 2007). From the inception of the UN until 1990, the Security Council imposed arms embargoes only twice: against South Africa and Rhodesia. In the decade that followed, the Council imposed arms embargoes a dozen more times.
An arms embargo seems like an ideal example of a targeted sanction, in that it is intended to interrupt the flow of precisely the goods that could escalate a conflict or facilitate a human rights abuse. In situations where the UN imposes an arms embargo as a form of conflict management, to achieve a peaceful political resolution of an armed conflict, UN peacekeepers are often present, and the embargo is more effective as a result of UN monitoring and enforcement (Fruchart et al. 2007).
But while there has been considerable refinement in the use of arms embargoes, there continue to be substantial practical problems in implementation. They do little to actually reduce the flow of weapons. On the contrary, the prohibition creates a black market for weapons, accompanied by opportunities for higher profits than in the legal arms trade. There are systematic ways to circumvent the prohibitions, such as the use of “flags of convenience” to disguise an aircraft’s country of origin; cargo planes filing false air routes; and the forgery of end-user certificates (Wenzel and Faltas 2009, 115). There is often collusion of multiple state actors. For example, in the case of arms trafficking to Liberia, numerous Eastern European countries exported the illicit arms, while several West African states facilitated illegal shipments (Wenzel and Faltas 2009, 111).
The sheer quantity of weapons available globally makes it difficult to significantly reduce the flow of arms. Multiple studies have found that arms embargoes may not significantly reduce the flow of arms (Wallensteen et al. 2003, 105). An arms embargo may just make weapons more expensive; and “the higher the cost of the arms, the more attractive the deal to illegal arms dealers” (Brzoska 2002, 128). One commentator notes that “The world is literally awash in arms” (Cortright and Lopez 2002, 14). There is greater success in restricting the sale of major weapons systems, since those are more likely to be produced by state enterprises and subject to stricter controls (Brzoska 2002, 12). However, light weapons can more easily be manufactured and sold by private companies. Embargoes have the least effect on their availability, and light weapons are the ones most commonly used in current armed conflicts (Brzoska 2001, 10). Some have suggested that illegal arms sales establish criminal networks for shipments and financing that then lend themselves as well to human trafficking and drug trafficking. In this case, it might be argued that arms embargoes do more harm than good. However, it seems that, at the least, arms embargoes have been disappointing as a means of blocking access to weapons.
Although visa bans are not economic sanctions, they are often included in the list of targeted sanctions. Visa bans can designate individual political leaders or wrong-doers by name, and the restrictions affecting them would not affect anyone else. But there are problems with implementation, as well as a serious question as to their effectiveness. Often there are no clear procedures providing guidance for states that encounter banned individuals in their territory, or attempting to enter it. It is not difficult for individuals to hold passports in multiple nationalities, or to use fraudulent passports (Wallensteen et al. 2003, 115). One sanctions expert noted that, in the case of North Korea, the corruption and illicit movement of persons via a system of aliases was at least as extensive as the illicit movement of goods (Lopez 2013).
While there may be symbolic value in imposing visa bans, there is little evidence that it is so costly to political or military leaders as to cause them to reconsider a policy or state practice, or that restricting travel affects such individuals in any way that goes beyond inconvenience (DeVries 2002, 99).
Aviation bans sometimes include trade measures, such as prohibitions on selling parts for repairs and maintenance, and sometimes involve non-economic measures, such as flight bans. As with arms embargoes, there are many ways that flight bans can be circumvented. Planes can be registered under different names, and the pilots can file false flight plans (Wallensteen et al. 2003, 119). Restrictions on passenger flights are implemented relatively well, compared to cargo flights; since commercial passenger airlines are generally well-regulated, while the air cargo industry is not, aviation bans on cargo flights are quite porous (Conroy 2002, 162). The illegal flights, in turn, often contribute to the black market in the sanctioned country. The flight ban imposed on UNITA in Angola was violated continuously, with tons of goods being flown in daily on illegal but highly profitable flights, benefiting those who could afford to buy black market goods (Conroy 2002).
There are also humanitarian impacts that are not widely acknowledged. The lack of regular commercial flights can significantly impact the population as a whole. The flight ban imposed on commercial flights to and from Haiti was seen as a way of denying the wealthy the opportunity to shop for luxuries abroad. But another consequence was that hundreds of Haitians hoping to receive asylum in the United States or elsewhere had no way to leave the country (Conroy 2002). In the case of the Security Council sanctions on Libya, the aviation ban meant that travel presented a much greater hardship for the population as a whole; for example, a flight from Tripoli to Alexandria, Egypt, is 90 minutes, whereas driving takes 15 hours (Conroy 2002).
Targeted Trade Sanctions
Targeted trade sanctions seek to interrupt the flow of particular commodities, such as timber, diamonds, or oil, on the grounds that they benefit political or military leaders responsible for human rights abuses or aggression. For example, since Liberia used timber taxes to purchase arms, the Security Council prohibited the import of Liberian lumber (UN Security Council, Resolution 1378, 2003). Liberia, which held a democratic election in 2005 after years of governance under a brutal regime, is often cited as an instance of the successful use of sanctions. But the sanctions targeted two of the country’s three most significant exports – diamonds and timber – further compromising Liberia’s struggling economy. In addition, the implementation of the sanctions regime required some 15,000 UN peacekeepers, as well as the near-complete control of the state (Carisch and Rickard-Martin 2013, 5). It is not clear that there would be sufficient political support to implement such labor-intensive measures on a regular basis.
To the extent that the export of a particular commodity can be undermined, if it is a significant part of the target state’s economy –and it almost always is– there can also be the problem of overbreadth that characterized the Iraq sanctions: Compromising a significant export may interrupt the cash flow of the leadership, but also damages a sector of the economy; legitimate business can be affected; and by undermining the state’s source of funding, it will also deprive the state of the funds needed to perform legitimate governmental functions.
As with the other types of targeted sanctions, there are logistical difficulties with their implementation. Commodities are often fungible, and it may be impossible to identify whether a particular shipment of timber or oil came from the sanctioned state. Even if there are certification procedures, they are often not standardized, or lend themselves to forgery. As with arms embargoes, interrupting the flow of a commodity may simply result in new transport routes to circumvent monitors (Wallensteen et al. 2003, 124). In the case of mineral sanctions on the Democratic Republic of Congo (DRC), for example, gold is much harder to track than other minerals, and can easily be transferred abroad without detection (Carisch and Rickard- Martin 2013, 7).
The Future of Targeted Sanctions
There was considerable optimism in the 1990s about the possibilities of smart sanctions. Many expected them to provide an elegant and powerful solution to the failings of broad economic sanctions. They seemed like the perfect fix: measures that are hard-hitting, impacting those responsible for terrorism or international law violations, without the ethical and humanitarian problems that come from crippling an entire economy. Certainly, enormous efforts have gone into refining targeted sanctions, of every sort, to improve their effectiveness, and to resolve the human rights problems that have also emerged.
On one hand, it seems that it has become politically imperative to frame the imposition of economic sanctions as “smart,” by using terms like “narrowly targeted,” or by using lists of individual persons or companies that create an impression of punishing specific wrong-doers.
But while targeted sanctions are more politically palatable than broad sanctions, they continue to be problematic on many levels.
Some, such as arms embargoes, have problems with implementation that appear to be unresolvable, after more than a decade of efforts by practitioners, consultants, and academics. But more significantly, the availability of targeted sanctions did not bring an end to the humanitarian damage or the ethical issues presented by broad sanctions, at least not in the way they were expected to. This is partly because sanctions that are described as “targeted,” such as aviation bans or commodity sanctions, in fact may still do structural harm to the economy or infrastructure. At the same time, the pervasive rhetoric of targeted sanctions seems to have had, so to speak, a certain collateral damage: It has short-circuited the public discussion of humanitarian impact. Where the 1990s witnessed growing demands for humanitarian monitoring and prior assessment of humanitarian impact, this has largely ceased. It seems that the universal belief is that since sanctions are now “smart,” we no longer have to worry about harming the innocent. But that is not true at all. At best, there are inconsistencies and difficulties with targeted sanctions that to some extent compromise their political effectiveness, and incidentally affect those with no responsibility for the target state’s policies. These are disappointments of the sort we would see in the implementation of any public policy. But additionally, there also continue to be sanctions regimes that are indiscriminate by design, and do extensive damage to the population as a whole. This is true, for example, of the sanctions imposed on Iran by the United States, EU, and others, targeting its major banks as well as the major shipping lines, compromising Iran’s financial sector and its imports and exports.
Most significantly, as the case of Iran demonstrates, neither the Security Council resolutions nor international norms can be counted on to ensure that a sanctions regime does not do indiscriminate harm. To the contrary, the language of “targeting” or of listing individual wrong-doers seems to obviate the need for scrutiny. This is the case even if there is a humanitarian crisis brought on in large measure by the sanctions.
How we view economic sanctions, their possibilities, and their limitations, has undergone considerable transformation. Initially seen as a powerful yet humane tool for global governance, there were always doubts about the effectiveness of sanctions, and by the 1990s there was growing concern about whether it was even ethical to use them at all, given the humanitarian damage they could do. It seemed that with the advent of targeted sanctions, both the ethical and the strategic concerns might be put to rest. But, we might say, rumors of their demise have been a bit premature.
« 08 »
Abuse of Law on the Twenty-First-Century Battlefield: A Typology of Lawfare
Warfare, Law, and Lawfare
Is international law (IL) a substitute for armed force in international relations? Put differently, can IL be state A’s means of getting state B to do its bidding against B’s will? Ideally, that is exactly what law is: a means of coercion that pre-empts the use of force. In the face of competing claims, divergent perceptions, or conflicting interests, law tells us who or which side is in the right, saving us the trouble of a physical confrontation. Of course, we rely on law to be effective in this task because it is typically backed by a threat of enforcement. Those who break a law tend to incur a penalty. In the archetypal understanding of enforcement that penalty is force or violence. Law is hence at best a temporary substitute for force. When push comes to shove the coercive power of law depends on violence.
To the extent that this is still the dominant way in which we think about law, international lawyers have to engage in what Thomas Franck aptly called “defensive ontology” (Franck 1995, 6). If association with the coercive power of the state is what renders a rule a law, then IL cannot really be law. After all, international relations are anarchical in the sense that states are not subject to a superior authority with a monopoly on the use of force that could enforce this “law.” States comply with it either because that is how they want to behave anyway or because a rule of IL is backed by the material power of another state (for this view see Goldsmith and Posner 2005; Grieco 1988; Krasner 1999; Nardin 2008; Thompson 2012). As enforcement accounts for the coercive power of law, the answer to the initial question – can IL be a substitute for armed force in international relations – must be no. It cannot even be relied on to be the temporary substitute that domestic law is. As Eric Posner puts it: “[l]aws do not enforce themselves. If a weak country cannot coerce a more powerful country through force of arms, then it cannot coerce the other country with law either” (Posner 2011).
(Austin 1832, lecture I; also Austin/Campbell 1879/2002), a wealth of alternative theories of law have emerged. They criticize that a credible threat of sanctions is neither what characterizes most laws, nor the dominant reason why laws are obeyed (Cotterell 2003). By the same token, IR scholarship has shown that IL can have effects on state behavior that are not reducible to an underlying threat of force (Brunnée and Toope 2010; Dill 2015a, 50ff). Like domestic law, IL often relies for its compliance pull on actors’ desire to be deemed legitimate (Dill 2015b). The coercive power of IL then stems from the association of legality with legitimacy and the reputational costs that states in defiance of IL incur as a result. Moreover, compliance with IL is connected to many contemporary societies’ identities. That means a number of states obey IL habitually and even beyond what is instrumentally rational. IL is thus a means not just of coercion, but also of persuasion. Far from IL’s originally dominant characterization as an epiphenomenon of material power (Carr 1946, 170; Morgenthau 1948, 249; Waltz 1979, 88), it is now widely recognized as exerting influence on state behavior even when it is not backed by force.
While sometimes used to refer to the strategic use of IL in general, lawfare has most often been the banner under which scholars discuss the observation that this coercive and persuasive capacity of IL does not disappear with the outbreak of armed conflict. Quite the contrary; in the twenty-first century, legitimacy in war, like in peace, is predominantly measured in terms of legality (Dill 2015a, 154ff, 239ff; Kennedy 2006 and 2012, 160). Since the use of force is prima facie illegitimate, state belligerents clamor for the legitimacy afforded by international humanitarian law (IHL). Specifically when the world is watching, most states go to considerable length to avoid the appearance of non-compliance, the usually high stakes in war notwithstanding. As a result, evoking IL can serve as “a substitute for traditional military means” to shape the behavior of states at war (Dunlap 2009, 54).
Not surprisingly, this is particularly true for states whose societies’ identities are connected to the rule of law, such as the United States and Israel. The Israel Defense Forces (IDF) as well as the US Armed Forces have institutionalized legal argument in the conduct of hostilities through IHL training, the presence of lawyers in or alongside the chain of command, and legal review of military practices (Attorney General’s 2015; US Department of Defense 1974). They vociferously defy allegations of non-compliance (State of Israel 2015) and consider those that are substantiated a strategic defeat. Of course, both states have considerable material power and they have largely kept their soldiers beyond the jurisdictional reach of international adjudication and thus enforcement of IHL. The exercise of the coercive and persuasive power of law in war even against such belligerents then signals the emancipation of the laws of war from material power. “Lawfare” denotes IL’s ability to serve as a substitute for armed force in international relations even, as it were, when push comes to shove.
But why did we need the semantic fusion of law with warfare to grasp this phenomenon? An alternative, admittedly less catchy, way of describing what is going on would be “law operates like law, even in war.” Two prescriptive projects, which are in tension with each other, explain the popularity of the term lawfare. One strives to draw attention to the role and also the usefulness of IL. Despite the mounting empirical evidence for IL’s impact, in IR scholarship IL’s acceptance as a variable in its own right is only partial. The equivalence of legal argument and the use of force suggested by one neat compound noun may convince the realist scholar that IL is a worthwhile object of inquiry. After all, no one ever doubted the crucial role of war in international relations. Even more importantly, the term lawfare may help convince the military practitioner that the maxims “inter arma silent leges” or “Kriegsraison geht vor Kriegsmanier” belong in the past. A “bumper sticker to help military personnel understand why the law needs to be incorporated into their thinking and planning,” (Dunlap 2010, 126) is what General Charles Dunlap, who popularized the term, meant it to be (Dunlap 2008 and 2011).
The second prescriptive project responds to the demand for a delineation of legitimate uses of IL as a means of coercion from illegitimate ones. This demand has risen in lock-step with the proliferation of legal arguments about and in war. In recent years, a myriad of articles have probed the term “lawfare,” some mapping how the term is usually used (Ansah 2010; Luban 2010; Werner 2010), others arguing how it should be used (Noone, 2010; Tiefenbrun 2010). The most common understanding of lawfare is not state A’s use of law to get state B to do its bidding against B’s will, but A’s abuse of law to that end (Blank 2010; Horton 2007; Horton 2010; Jensen 2007; Lebowitz 2010; Posner 2011; Rivkin, Casey, and Delaquil 2004; Rivkin and Casey 2005; Samson 2009; Schmitt 2010; Williams 2010). This “lawfare critique” seeks to draw attention to the misuse of the coercive and persuasive power of law in war.
Calling all recourse to law in the context of war lawfare should indeed be rejected. It might help convince realist skeptics of the importance of IL, but the price of suggesting equivalence between legal argument and violence would be a considerable discreditation of the former. IL asks for a “duel ... with words rather than Swords” (Carlson and Yeomans 1975). It is therefore not a weapon of war like an F-16 jet or an M24 rifle, which can cause immediate physical harm. It is not a strategy of war like effects-based targeting or shock and awe either. Neither is an evocation of law a tactic akin to an ambush or the use of white phosphorous to obscure the battlespace. The success of the latter is determined by physical strength, chance, and possibly cleverness. In contrast, who wins a legal argument is determined, or so we hope, by who has the better claim to being in the right. An additional difference is, of course, that a resort to legal argument can amount to coercion (if it is backed by a threat of violence, reputational or economic costs), but it can also be genuinely persuasive. I doubt that an air strike has ever truly convinced anyone that they were in the wrong.
If abuse of law robs law of what distinguishes it from a firefight, we may then want to reserve the term lawfare as a synonym only for abuse of law (I will use the terms interchangeably in the following). But what distinguishes the use of IL in war from its abuse? The experts participating in an influential symposium on lawfare in 2010 correspondingly “agreed that the legitimate application of international law against participants in an armed conflict should not be labelled ‘lawfare.’” Yet they were unable to agree on a definition of “legitimate application” (Scharf and Andersen 2010–2011, 20f), or so the record of the meeting relates. Before giving a positive answer to the question by proposing a definition and a typology of lawfare, I will discuss several closely related ways of delineating the use from the abuse of IHL, which we encounter in the literature that denounces lawfare as the wrong way to use law. They all ultimately determine whether law is used or abused not based on the merit of the legal argument, but with regard to the perceived merit of the belligerent for or against whom the law is invoked.
A Critique of the Lawfare Critique
The most straightforward of these delineations simply asserts that certain actors use the laws of war legitimately while others do not. Posner (2011) provides the most striking example of this approach when he defines lawfare as “both the efforts of enemy nations, terrorist organizations and their supporters to counter American military superiority by threatening US policy makers and soldiers with prosecution and civil litigation, and the pressure brought to bear by NGOs who take to the media marketplace insisting that IL places sharp limits on military action.” Glenn Sulmasy and John Yoo (2007, 1836) famously lamented that “our commitment to adhere to the law of armed conflict, [has] been a catalyst for our opponents to use legal rules and processes as part of their operations, what military observers term ‘lawfare’.” The US Department of Defense in 2005 echoed the notion that “lawfare is what others do” by suggesting that recourse to IL, much like terrorism, is for the weak and generally in defiance of US interests: “Our strength as a nation will be continued to be challenged by those who employ a strategy of the weak, using international fora, judicial processes and terrorism.”
Few scholars would endorse the stark simplification that the laws of war are properly used in the furtherance of US interests, and lawfare is chiefly defined by its potential to constrain US freedom of action in the realm of national security. However, the notion that we can recognize lawfare by asking against whom IL is invoked is surprisingly common. In this view “[l]awfare tends to be used as a weapon against countries where the rule of law is strong” (Tiefenbrun 2010, 52). The charge of “lawfare” is then routinely leveled against legal challenges aimed at liberal state belligerents that are generally thought to be committed to IL, but fight non-compliant non-state actors in so-called asymmetric wars (Blank 2010; Dunlap 2014a; Dunlap 2014b; Samson 2009; Schmitt 2010). The contention is that legal criticism of these belligerents, namely Israel and the United States, gives their militarily weak adversaries an unexpected and, most maintain unfair, advantage. Such “lawfare” hampers the militarily superior belligerent’s victory on the battlefield and/or undermines it in the “court” of public opinion. In this view, evoking legal argument to challenge states that are (1) at war, (2) presumed to be law-abiding, and (3) facing a non-compliant adversary is an abuse of the law or lawfare.
Of course, nothing guarantees that a belligerent that generally upholds the law and incorporates legal considerations into the conduct of hostilities does never circumvent or violate IHL. Legal compliance is also not measured in relative terms, meaning in comparison to how well or badly one’s enemy does. Finally, the often implicit demand that the threat these countries face should be taken into account when their practices are scrutinized before the law (for instance, Schmitt and Merriman 2015) would be questioning the very idea that war can be subject to legal rules. Before every war at least one belligerent is threatened and once in war, as a matter of logic, all sides are. If an existential threat impedes the force of law in war, all we have in war is law thus impeded. Yet, this line of argument very rarely culminates in the explicit conclusion that a redrafting or rejection of the laws of war is necessary (for exceptions, see Ricks 2002; Sulmasy and Yoo 2007). After all, the defended belligerents benefit from the legitimacy afforded by the notion that war can be waged legally.
This delineation of use from abuse of IL according to a belligerent’s records of legal compliance is seemingly more convincing when it turns on the belligerent who makes the legal argument, rather than the belligerent against whom law is invoked. Elizabeth Samson concedes that in principle any actor is capable of “lawfare,” “but presently Lawfare is being pursued largely by Islamic ideologues, their supporters, and their financiers who sympathize with the actions of Islamic militants” (Samson 2009, 61). Can Hamas, which violates IHL by firing rockets indiscriminately at Israel’s population centers (UN Human Rights Council 2015, 29ff), demand that Israel use force proportionately when attacking targets in the Gaza Strip? Or is that an abuse of IHL? By breaking the law I lose certain rights, but I do not lose the right to evoke any and all law or to avail myself of legal protections in the future. Of course, continued violation of a law will tarnish my appeals to that very law with hypocrisy. But to dismiss a legal argument purely on the basis of the speaker’s attitude to IL in general is to confuse its logos, the substantive merit of an argument, with its ethos, the credibility or merit of the speaker (Aristotle/Ross 2010, 7–1356a; for a similar argument about the “lawfare critique” in general, see Luban 2010, 460). The legal argument of a hypocrite may be as valid as that of a saint.
Of course, third parties may call on a belligerent to comply with the law vis-a-vis a population whose belligerents defy that law even without the stain of hypocrisy. A civilian population does not lose any protections under IHL because their fighting forces violate it (Article 51(8) Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts Adopted 1977, herein API). It is uncontested that non- compliance of one belligerent does not release another from their legal obligations. The age of legally privileged reprisals against civilian populations is long over. Demanding the protection of a population whose military forces violate the law is therefore by no means an abuse of IHL. Just as we cannot simply recognize abuse of law by asking who the law is used against, we cannot recognize “lawfare” or an abuse of law by asking who appeals to the law or on whose behalf the law is invoked.
A more sophisticated approach to the distinction between use and abuse does not hinge on who makes the argument, but on how and why it is made. General Dunlap says in his defense of lawfare that “a weapon can be used for good or bad purposes, depending upon the mind-set of those who wield it. Much the same can be said about the law” (Dunlap 2010, 122). While related, the mindset behind and the purpose of a legal argument are not quite the same. We can think of the purpose as the substantive goal or end to which law is invoked. Why does a belligerent appeal to IHL: to halt the use of a specific weapon or tactic, to shame the adversary, to gain the attention of the ICC Prosecutor’s office etc. I will return to the question of law’s “proper purpose” below. The mindset could refer to an actor’s general attitude toward law, which I dismissed as the appropriate criterion for defining abuse or lawfare above. Alternatively, mindset could denote the “how” of a legal argument, something that might be better grasped with a term like state or frame of mind in which the argument is made or law is used in a particular instance. This is what commentators who express “concern that the credibility and independence of legal arguments is undermined by their strategic use” worry about (Werner 2010, 68).
I venture that the way in which law is invoked in war is almost always strategic or instrumental. The state of mind of a belligerent resorting to legal argument can be expected to be self-interested. Belligerents may comply with law habitually or sometimes because they think it is the right thing to do, hence in a non-instrumental way. But when a belligerent at war alleges an IHL violation by their adversary or asks for the legal opinion from a third party, it is not because being aware of the errors of their ways might do the adversary some good. As David Luban puts it, “[a]nyone who voluntarily has recourse to the institutions of the law has ulterior motives: nobody ever files a lawsuit out of disinterested curiosity in the answer to a legal question” (Luban 2010). If in peace time we do not consider the strategic use of law reprehensible or a threat to the law, why should it be considered abusive in war? War is the ideal type of a zero-sum game, in which the stakes are so high that the survival of the participants may be threatened. We should not expect “disinterested curiosity” from the rational belligerent.
Denouncing the strategic use of law as abuse is a red herring all too often connected to one of the delineations of abuse and allegations of lawfare discussed above, which really hinge on who is using law against whom. The proliferation of this kind of argument has a straightforward explanation. When law meets war, it creates two specific temptations to allege abuse disconnected from the legal argument’s validity. First, if law never ruled out courses of action that are militarily expedient or even necessary, we would hardly need it. It is hence extremely likely that at one point or another every belligerent in war will be confronted with a legal argument that is highly inconvenient. At least for one side the constraints of IHL will regularly be prohibitive of victory. The allegation of abuse seems a ready means to dismiss such inconvenient arguments, which are the very linchpin of IHL’s restraining capacity. Second, IHL affords the same permissions to and imposes the same constraints on the belligerent that is the aggressor as on the belligerent that acts in legitimate self-defense. This is as necessary for IL to elicit compliance as it is counterintuitive, even somewhat distasteful. There is a temptation to satisfy our desire to express the moral and legal asymmetry we (sometimes correctly) perceive between belligerents by accepting the defender’s resort to law as appropriate use, while denouncing the aggressor availing herself of legal justifications or protections as abuse. The notion that invoking law to help an unjust aggressor achieve victory must be a use of the law for an improper purpose may be intuitively compelling, but it is mistaken.
The second temptation brings into sharp relief why it is nowhere more important than in war to abstract from the credibility of the speaker when determining the validity of resort to law or when alleging abuse of law. The descent of divergent perceptions or conflicting interests into war tends to signal that two sides no longer consider each other valid interlocutors. IL ideally affords a language in which we can nonetheless formulate, make intelligible, and adjudicate competing claims. The grounding of the definition of the proper use of law in the merit of the invoker robs IL of this capacity as legal argument becomes nothing more than a reproduction of the state of enmity that defines war. This, in turn, challenges the association of legality with legitimacy, on which, I argued above, law depends for its coercive and persuasive capacity much more than on actual enforcement. It is not per se a threat to the law if speakers use IHL in ways that assist the side they
hope will prevail in a military confrontation. It is a threat to the law if they refuse to engage with and denounce as abusive and thus invalid this strategic use of law every time it assists the other side. That is an abuse of the abuse charge.
Use and Abuse of Law
In the following, I will propose a definition of abuse of IHL or lawfare properly so-called, with two closely related aims. The first aim is to ground the delineation of use from abuse in what IL has to say about the state of mind in, and purpose for, which it should properly be invoked. This supports the second aim of coming to an understanding of abuse of IL that hinges on the visibility of an improper state of mind and faulty purpose in the use of law itself. Of course, no definition of abuse or lawfare is abuse-proof, which is why I will highlight the difference between what counts as abuse of IHL in theory and what an invocation of IHL looks like that we can call out as such without risking the de-legitimization of IL. I will use the terms abuse of law and lawfare synonymously.
General Dunlap’s reference to the mindset in which law is used strikes us as compelling because the law itself seemingly asks for a specific state of mind when it demands that it be used in good faith. The Declaration on Principles of IL Concerning Friendly Relations and Cooperation among States, like the United Nations Charter, enjoins states to fulfill their legal obligations in good faith. Article 31(1) of the Vienna Convention on the Law of Treaties insists that treaties are interpreted in good faith. The importance of good faith for IL is as obvious (see Farnsworth 1995; Zoller 1977) as its meaning is obscure. It is not itself “a source of an obligation where none would otherwise exist” (ICJ 1988, 105). Nor is good faith an interpretive approach that reveals parts of an otherwise obscured meaning of law (Ipsen 2004, 11). One way to understand it is as “a phrase which has no general meaning or meanings of its own, but which serves to exclude many heterogeneous forms of bad faith” (Summers 1968). Bad faith denotes dishonesty, duplicity, or deception. Examples of using law in bad faith include negotiating without any intention to settle or adopting a legal argument one knows to be false.
The requirement of good faith might at first appear like interference with the ideal that legal arguments are judged on their own merit rather than on the honesty of the speaker. Crucially, we do not say someone “is” or “has” bad faith, like someone is dishonest or has a duplicitous character, but someone acts or reasons in bad faith. It is never “taken into consideration by law in the abstract, as a purely psychological disposition” (Virally 1983). A dishonest state of mind becomes bad faith when it is invested in a specific legal argument or action and can thus (in theory) be diagnosed as an attribute of that argument or action rather than just of the speaker. It is precisely because the specific mode of persuasion associated with law centers on the argument, asking us not to take into account what we know about the speaker that law needs to draw a line at the deliberate misrepresentation of rule or fact. So the difference between a mere instrumentalization of law and the instrumentalization of law in bad faith is that in the latter case I know the facts or the reasoning I use to further my own ends to be wrong.
Making a legal argument in bad faith is failing to use law in the way law itself prescribes. With a view to the integrity of the law we might therefore be tempted to call the “mere” use of law in bad faith abuse. It certainly is a misuse. For instance, publicly alleging war crimes and demanding an investigation, while I do not myself think war crimes were committed, is a use of law in bad faith that is neither trivial nor easily excused. But the subjection of war to law is not an end in itself and neither is the law’s integrity. More important than showing respect for the law in the resort to law is using law to further compliance, i.e. that practices in warfare meet the standard set by IHL. I therefore propose to reserve the term abuse for the use of law in bad faith in order to facilitate or cover up a violation of the law. Lawfare is then the coincidence of two necessary conditions: the use of law in bad faith and an actual breach of law.
Does this definition really serve the purpose of minimizing spurious claims of abuse, the aim of making abuse discernible? The legal ideal notwithstanding, bad faith alone, even though it is invested into a legal argument, is extremely hard to diagnose in an argument that could in principle be valid. Who knows whether I really believe that war crimes have been committed when I call for the ICC to step in or whether I merely want to cast aspersions. This difficulty is compounded in the context of war. The declared antagonism makes us prone to diverging perceptions of reality. Is there enough preliminary evidence for a reasonable person to call for an investigation or is the claim so outlandish that it must be in bad faith? As mentioned above, enmity tends to carry the attribution of bad faith in its wake, which accounts for the not unusual confusion in the literature and political commentary of the strategic use of law and the use of law in bad faith. The former looks like the latter if who is speaking is on the other side of an M24. An allegation of bad faith regarding an argument that could in theory be made in good faith is therefore, without further evidence, even if it is connected to a breach of law, likely ad hominem. To safely call it abuse the argument needs to not only strike me as being made in bad faith, but should ideally be beyond the possibility of good faith.
To illuminate what it means for a legal argument to be “beyond good faith” for the outside observer we need to connect the way in which law is used (the state of mind) to the purposes for which it is used. Again we should not expect that belligerents evoke law for purposes other than their own. But, like the way in which arguments are made, the law itself limits the ends to which it should be used. The object and purpose of a rule is a guide to which practices or what kind of behavior a law seeks to forbid. Article 31(1) of the Vienna Convention demands that a treaty be interpreted “in light of its object and purpose.” Legal doctrine teaches that when a legal argument is made to endorse practices against the object and purpose of that law we know the interpretation to be invalid (Holmes 1998). Law proscribes its use for the purpose of undermining its own regulative goal.
Both elements of lawfare, the breach of law and the use of law in bad faith, can, but do not have to, amount to a use of law in defiance of its object and purpose. While many breaches of law will also defy the violated law’s regulative goal, not all do. I could violate the law simply by falling short of the prescribed standard. By the same token, I could conceivably use the law in bad faith and still further its object and purpose: for instance, when I deliberately misrepresent the facts to induce compliance in a belligerent. However, some uses of law in bad faith also amount to a defiance of the law’s object and purpose, such as the use of a duplicitous legal argument to facilitate a breach of law. Neither a mere breach nor a mere use of the law in bad faith is negligible, but each tends to be less contestable when amounting to a defiance of the law’s object and purpose.
In the remaining space of this chapter I discuss four types of abuse that we may encounter on the twenty-first-century battlefield corresponding with four different ways in which bad faith, a violation, and a defiance of the law’s object and purpose can coincide (for an overview see Table 8.1).
|The relationship between the two elements: use in bad faith and the breach of IHL||The connection of the two elements to the threshold of gravity: the defiance of IHL’s object and purpose||The same law is breach ed and used in bad faith||The use in bad faith is a speech act|
|Indetermina cy-based lawfare||The use in bad faith is meant to enable (make less costly) the breach||The use in bad faith is meant to enable (make less costly) the breach||Yes||Yes|
Perfidy- based lawfare
|The breach is meant to enable the use in bad faith||The breach contains the defiance of the law’s object and purpose and also reveals bad faith||Yes||No|
|Reputation- destroying lawfare||The breach is meant to enable the use in bad faith||The breach and use both defy the law’s object and purpose||No||Yes|
|Reputation- preserving lawfare||The use in bad faith is meant to enable (make less costly) the breach||The use in bad faith defies the object and purpose – “ideally” so does the breach||No||No|
A Typology of Lawfare
I call “indeterminacy-based lawfare” a deliberate exploitation of the open-endedness of all language and hence the contestability of a law’s meaning to justify breaches of the rule that defy its own object and purpose. If I make a legal argument to justify my behavior, which I know is contrary to the object and purpose of the law I am invoking, I am not only making an argument in bad faith in that I knowingly misrepresent reality, I am also using law against itself to enable the violation in the sense of limiting its reputational costs. One actor who knowingly uses law to justify another actor’s practices contrary to the object and purpose of law, does not violate a substantive obligation, but still abuses the law as her use of law in bad faith facilitates a practice in violation and indeed defiance of the law. This type of abuse has been alleged against the United States in the context of the war on terror. A body of literature documents how the contestability of the definition of torture was used in order to legitimize the notorious treatment of detainees at Guantanamo Bay (Luban 2005a; Luban 2007; Waldron 2010a, chapter 9).
While the interrogation techniques in question clearly amounted to a breach of the prohibition on torture under IL, whether the authors of the so-called torture memos were aware of this, i.e. used law in bad faith, is controversial (for the gamut of views, see Clark and Mertens 2004; Luban 2005b; Posner and Vermule 2004; Wedgwood and Woosley 2004). In this case, the recourse to legal argument was made by lawyers acting in an official capacity so that the line between strategic use and abuse in bad faith is drawn by the applicable code of professional ethics, here the Rules of the American Bar Association. In the “court” of public opinion, the seriousness of the justified breach is a crucial ingredient for the validity of the allegation of bad faith. Conceptually, knowingly justifying mere non-compliance is an abuse of law. After all, it involves both the use of law in bad faith and against itself. However, even in good faith different interpretations of a legal text are possible and an actor may well in good faith deem herself or the belligerent she defends in compliance with a law while that is not the case. It is because violations that defy the object and purpose of the law tend to be more obvious and in principle incontestably violations that we can more readily assume that someone who justifies them does so knowingly, hence in bad faith.
Of course, even what the object and purpose of a treaty or provision are and whether or not a practice defies them, are by no means always beyond contestation (Buffard and Zemanek 1998; Jonas and Saunders 2010, 566). While the prohibition on torture has one overriding goal, which practices such as waterboarding clearly defy (for a dismissal of a purposive interpretation even of the prohibition on torture, see Waldron 2010a), identifying practices against the object and purpose of IHL is often more difficult. IHL has a split regulative purpose (Dill 2015a, 83). It neither seeks to simply render war humane, nor does it just bow to military necessity. It strives for a compromise between these often directly contradictory goals. That means that a legal argument justifying the harming of civilians is not necessarily invalid. At the same time, it is very well possible that an argument justifying a militarily necessary practice is. That is the military price for the mantle of legitimacy afforded by IL. It may be contestable when exactly an interpretation has tilted too far toward either humanitarianism or military pragmatism, defying the law’s purpose of striking a balance. Specifically for IHL, the qualification of the breach as defying the object and purpose of the law to demonstrate bad faith is hence crucial. In addition, for this type of indeterminacy-based lawfare bad faith should ideally be demonstrated separately before we cry foul.
An abuse of law does not have to be a speech act. Breaches of law that rely on the compliance with law of the other side to generate an advantage on the battlefield also amount to an abuse. The most straightforward example of this is perfidy. In the case of what I want to call “perfidy-based lawfare,” the belligerent acts in a way that invites the adversary’s trust grounded in a legal rule: for instance, the trust not to be threatened by a civilian. Many non-state belligerents in contemporary wars have a track record of failure to distinguish themselves, which is under most circumstances a violation of IHL (Article 44(3) API). If the failure to distinguish takes the form of feigning civilian status (Article 37(1)c API), it engages the commitment of the other side to the principle of distinction (Article 48 API) and its corollary civilian immunity. For instance, in the recent military confrontation between Israel and Hamas, allegedly booby-trapped persons in civilian clothes relied on the IDF’s upholding distinction in order to get close to troops before detonating their explosives (Breaking the Silence 2015, 47). Using the rule of distinction in order to gain a military advantage from a breach of distinction counts as a use of the rule against its own object and purpose. The strategic success of the violation of distinction arises from the violator knowing that the other side does not expect the practice because it is a violation. Bad faith is hence manifest in the violation itself.
Of course, not every breach that defies a law’s object and purpose is perfidy-based lawfare, hence an abuse of law. Abuse suggests purposeful engagement. Non-compliance, however serious, might stem from ignorance of law or a prioritization of other imperatives, hence from a failure to engage with the law. Is it abuse of IL if my non-compliance is due to my hope that it will give me a military advantage vis-a-vis an enemy that is committed to IHL? Well, I may hope that my own lack of casualty aversion gives me a leg-up over an enemy who is very risk averse, but unless I actively engage that risk aversion to maximize the strategic benefit accruing from this difference, I am not using the enemy’s casualty aversion, let alone abusing it. Abuse requires use. Given the difference between non-compliance and abusive breaches of law, we cannot simply refer to a belligerent’s general compliance record as a proxy for abuse and thus as grounds for alleging perfidy-based lawfare.
Both indeterminacy- and perfidy-based lawfare use in bad faith the legal principle or rule that is also violated (in the examples, the prohibition on torture and the principle of distinction respectively). They differ in that in the case of indeterminacy-based lawfare the use of law in bad faith and against itself is a speech act, which though connected, is an act separate from the violation. In the case of perfidy-based lawfare, an act on the battlefield is a material breach that is both a use of law against its own object and purpose and a use of law in bad faith. Indeterminacy-based lawfare is associated with belligerents beholden to the law, whose temptation is to weaken the law’s constraining force while not incurring the reputational costs of being found violating IL. Perfidy-based lawfare capitalizes on an asymmetry of commitment to IL for the achievement of an advantage on the battlefield. This is the specific temptation of non-state actors who are less (some not at all) susceptible to the imposition of reputational costs and thus the constraints of IHL than their adversaries.
According to the definition of abuse proposed here, there are two additional types of potential lawfare, which are less obvious because they are a combination of the use in bad faith of one rule and the breach of another. What I call reputation-destroying lawfare, like perfidy, violates law in order to use it in bad faith to gain an advantage. What I call reputation-preserving lawfare, like indeterminacy-based lawfare, uses law in bad faith for the purpose of a successful violation. Reputation-destroying lawfare, like indeterminacy-based lawfare, relies on speech acts. To the contrary, in the case of reputation-preserving and perfidy-based lawfare, both the violation and the use of law in bad faith are acts on the battlefield. The following examples discuss potential cases of reputation-destroying and –preserving lawfare and highlight the respective challenges in establishing that the elements of abuse– the use of law in bad faith and a violation –are actually present and that the threshold of gravity of a defiance of the law’s object and purpose is met.
It is a fairly recent phenomenon that non-state belligerents engage in legal arguments. In line with the definition proposed, it is not an abuse of law when the Taliban alleges a violation of IL by coalition forces (see Islamic Emirate of Afghanistan 2015) even if the collateral damage that is denounced as disproportionate is not manifestly so and the argument may well be made in bad faith. That is true even if the proximity of military equipment to civilians contributed to the civilian death toll. However, comingling can amount to a breach of the defender’s duty to take precautions in attack (Article 58 API). Moreover, the deliberate use of civilians to protect military equipment falls foul of the prohibition on using human shields (Article 51(7) API). If such a breach is meant to enable the claim that the adversary broke the principle of proportionality, it is a breach defying the law’s object and purpose. The allegation against the other side to have caused disproportionate collateral damage is then a use of Article 51(5)b API in bad faith. If the allegation is made by the belligerent that “created” the civilian casualties, the speech act betrays that the belligerent knows the practice to be a violation. It hence reveals bad faith. In the case of reputation-destroying lawfare, the challenge is to prove the breach and its purpose. If the allegation is made by an actor other than the one who violated the law, it may in addition be difficult to prove bad faith.
Reputation-preserving lawfare seeks to ward off the reputational costs of an IHL violation, which reputation-destroying lawfare seeks to impose. In both the 2009 and 2014 military campaigns in Gaza, the IDF issued warnings on an unprecedented scale to motivate the civilian population to leave areas to be attacked (Schmitt and Merriman 2015; State of Israel 2015, 170ff). According to the accounts of returning soldiers, individuals remaining in warned neighborhoods were presumed to be open to attack, amounting to a breach of the principle of distinction. “[T]he directive [was] ‘Whoever you identify is an enemy’ ... the justification that’s behind it is that the IDF distributed hundreds of thousands of flyers warning the residents to evacuate” (Breaking the Silence 2015, 159, similar 37, 58f, 88, 106, 137, 144, 170, 180; see also UN Human Rights Council 2015, 68; Human Rights Watch 2014; for a denial of this claim see State of Israel 2015, 177, para. 306f). While by no means all rules of IL for the conduct of hostilities have an overriding humanitarian purpose, Article 57(2)c API, the duty to warn civilians if possible, does. An interpretation of the provision that seeks to justify the weakening of civilian protection, indeed a breach of distinction, defies its object and purpose. While considerable evidence points to the violation of distinction and the connection to the warnings, proving bad faith, i.e. the use of warnings to cloak in legitimacy a practice the IDF knows violates the law, would require separate evidence.
Lawfare, or the abuse of IL in war, is testimony to its coercive and persuasive power. You can only effectively abuse law if you can in principle effectively use it. That effectiveness largely depends on IL’s association with legitimacy. What threatens this association of legality with legitimacy is not the strategic, self-interested use of law in war. Even abuse as defined here does not necessarily destroy the legitimacy of the legal regulation of war, though it of course can. It may not always be evident or easy to establish, but the use of law in bad faith to facilitate a violation that is severe enough to amount to a use of law against its own object and purpose tends to ultimately discredit the abuser more than it discredits the law. What risks giving legal argument the dynamic of a firefight rather than an attempt at persuasion is rooting proper use in the merit of the belligerent that it assists and dismissing as abusive recourse to law because it furthers the aims of the belligerent “on the other side.” Maybe it is not even abuse of law as defined here that should be called lawfare then, but the abuse of the abuse charge, which robs law of its capacity to be a true alternative and more than a mere substitute for armed force in international relations. This capacity is the driving force of the astonishing subjection of warfare to IL over the last decades. The continued relevance of law in war crucially depends on it.
« 11 »
Bearers of Hope: On the Paradox of Nonviolent Action
- I believe that even amid today’s motor bursts and whining bullets, there is still hope for a brighter tomorrow. I believe that wounded justice, lying prostrate on the blood-flowing streets of our nations, can be lifted from this dust of shame to reign supreme among the children of men.
- – Martin Luther King, Jr., “Nonviolence and Racial Justice” (1957)
After much deliberation, Martin Luther King, Jr. decided to get arrested. He was needed in the struggle against segregation in Birmingham, Alabama, that had begun in spring 1963. The movement had little money to pay his bail and no one knew what his sentence would be. But something dramatic was needed, so on April 12 he purposefully violated the city’s anti-protest injunction and was placed in solitary confinement. It was there he composed a key text in the history of nonviolence, “Letter from a Birmingham Jail,” prompted in part by the tepid response his movement was receiving from many of Birmingham’s religious leaders.
While King was in jail, James Bevel, a twenty-seven-year-old veteran of civil rights struggles, had another idea. “Most adults felt that segregation was permanent, that it was just that way,” Bevel would later say (Bevel 1985). Young people could see other possibilities; they were “bearers of hope.” So he would organize Birmingham’s children to act as the adults would not, to nonviolently disrupt the institutions of segregation with the aim of being arrested – and thus “fill the jails” in true Gandhian fashion. In his jailhouse epistle, King was writing that sometimes oppressive conditions required “creative tension,” i.e. conflict, for a breakthrough. Bevel would do just that by what Newsweek Magazine later dubbed “The
Bevel approached his crusade strategically. He started in his words with “the queens of the high schools, the basketball stars, the football stars,” to get “the influence and power leaders involved. And then, they in turn got all the other students involved.” He enlisted Birmingham’s black radio station, WENN, which told students to arrive at the demonstration’s meeting place with a toothbrush to be used in jail. Flyers said, “Fight for freedom first then go to school.” One young participant, Larry Russell, reflected years later that the disk jockeys called it a “party”: “On the broadcast they’d say, ‘There’s going to be a party Monday night at six at Sixteenth Street Baptist Church, and everybody’s invited.’ We good old Baptists knew there wasn’t going to be any dance.” Another, Audrey Faye Hendricks, remembered,
- We started from Sixteenth Street Church. We always sang when we left the church. The singing was like a jubilance. It was a release. And it also gave you calmness and reassurance. I was in jail seven days. We slept in little rooms with bunk beds. We called ourselves Freedom Fighters, Freedom Riders.
“When I told my mother that I wanted to go. She just said, ‘Okay,’” Audrey notes. “I was in third grade” (Levine 2000).
Needless to say, some in the African American community were appalled, and there was deep division among movements leaders themselves about such tactics.
Protest and/or Provocation
The Birmingham action is now seen as a major triumph, a turning point in the civil rights struggle. The tactics of nonviolent direct action were not developed by King and his organization, the Southern Christian Leadership Conference (SCLC). They were pioneered by African American college students, initially under the guidance of James Lawson, a devotee of Gandhi.2 They were later appropriated by King’s wing of the movement. As Clayborne Carson writes, King “had never led a massive campaign of civil disobedience before,” on the contrary his previous action had failed. He found that “there were not enough adults prepared to be arrested. So the Children’s Crusade turned the tide of the movement” (quoted in Joiner 2013). Birmingham led to the March on Washington later that year, the site of King’s “I Have a Dream” speech. It played a central role in pressuring the federal government to pass the landmark 1964 Civil Rights Act; it was instrumental to King’s winning the 1964 Nobel Peace Prize.
No one doubted the success of Birmingham. The violence provoked by the actions of demonstrators stirred the nation’s conscience. The sight of children facing dogs and hoses provided dramatic images for the front pages of newspapers. Afterward, a surge of nonviolent protest swept the nation, 758 demonstrations in 186 cities in the South alone, with more than 20,000 arrests. Yet they remained controversial. The first day’s march, over 1,000 strong, included some just starting elementary school. Seven-year-old Jennifer Fancher was attacked by a charging police dog; others were clubbed by police officers or hit by the flying bricks churned up by the fire hoses trained on them. Malcolm X complained, “Real men don’t put their children on the firing line.” Critics questioned if such a movement was truly “nonviolent” or just employed violence in a different way. Even sympathizers have termed it “the paradox of nonviolent direct action” (Colaiaco 1986). The problem was exacerbated by the role of children in the Birmingham case. Hence the irony of the name, “Children’s Crusade” – as the first “Children’s Crusade” constituted the manipulation and exploitation of children on a massive scale!
At the time, King himself was ambivalent. Informed of the plans when released from jail, he deferred to others, and for much of the first day’s actions remained out of sight. But over time he came to regard Birmingham as a massive affirmation of what nonviolence was all about. Indeed, he chastised those who used it to raise questions about nonviolence itself. It is those questions I explore in this essay.
The Birmingham case was not unique. Others have been larger and more costly. The South African Soweto Uprising of June 1976 involved an estimated 20,000 young people and resulted in the killing of hundreds (some estimate up to 700). The Intifada actions involving young people also resulted in loss of human life. (No children were killed at Birmingham.) Yet Birmingham is more problematic in some respects. Soweto and the Intifada were rather spontaneous, at least compared to Birmingham where much decision and planning by political organizers went into placing young people in harm’s way. And Birmingham, unlike these other cases, presented itself as an exercise in disciplined nonviolence, inspired by values like love.
For purposes of discussion, I shall distinguish two issues. One is the role that provoking violence plays in nonviolent politics, and its success. This is an issue for many nonviolent political actions and, as Michael Gross (2015, 252) notes, it is an especially “vexing” one. “Whether a nonviolent campaign may deliberately provoke violence sufficiently extreme to fundamentally transform an adversary’s policies is a question that makes theorists uncomfortable.” Perhaps this is why so little has been written about it, a surprising fact given its importance to many nonviolent actions. The second issue is enlisting children in such actions. This is an issue specific to the Birmingham case. King’s ambivalence, and that of many others, pertains to this second issue, not the first. I address each in the section “The Dilemmas of Birmingham” in this chapter. But first in the next section I explore the political philosophy of King and that part of the civil rights movement he led. I call it “African American prophetic pacifism,” to mark its multiple and – to me, at least – intriguing dimensions. It is a politics developed mainly, though not entirely, by African Americans from two sources: the Biblical prophetic tradition, and pacifism, influenced deeply but not solely by Gandhi.
In choosing the Birmingham case I do not mean to privilege American experiences over others. I focus on it for several reasons.
To begin with, I know a lot more about it and its political/philosophical context, in no small part because my own participation in the civil rights movement was what first brought me to the politics of social change, as it did so many of my generation. Individual acts of nonviolent protest have occurred for a long time and were a staple of African American resistance.3 What was distinctive about King was that he, like Gandhi, perceived them as part of a larger movement and planned them accordingly. Not every politics construes itself as aspiring to create a “movement.” Despite their importance to the politics of social change, political philosophy has rather little to say about political movements and the normative questions they raise (an exception is discussions of the feminist movement). This is further reason for focusing on King and the civil rights movement. Finally, I think that, for all the official celebrations of him, King has been ignored by the hegemonic academic culture of the Northeast United States. Martin Luther King, Jr., is the only major political figure in American history with a Ph.D. in philosophy, whose writings include discussions of Hegel, Marx, and other canonical political philosophers. (His FBI file takes special interest in his views on Hegelian dialectics!). Yet King the philosopher is invisible to mainstream political philosophy. Its discussion prefers to regard the civil rights era as primarily a story of Supreme Court decisions, made by enlightened privileged white federal judges. The remarkable and wholly unexpected political activism of young African Americans in the South is ignored. Part of the problem is that the civil rights movement and its leaders were deeply religious and saw that fact as central to their activities, while today’s academic political philosophy is deeply skeptical of religion. Hence my attention, in what follows, to the role of religion in the most important progressive movement of twentieth-century America.4
African American Prophetic Pacifism
The impact of Gandhi on the African American community is one of the more interesting stories of modern politics, and one of the least known (see Kapur 1992; Slate 2012). It culminates in King, but involves some of the giants of twentieth-century African American politics such as Howard Thurman (see Thurman 1981; 1996), Benjamin Mays (see Jelks 2012), Bayard Rustin (see Anderson 1997; D’Emilio 2004; Rustin 2003), and the aforementioned James Lawson. From the start, the African American community saw Gandhi’s achievements as speaking to the conditions of their own community, which many construed as colonial oppression. They were attracted to how its nonviolent politics was attentive to local traditions, especially religious ones, and to how it offered a wide choice of tactics for confronting problems at hand. African American newspapers regularly reported on the Indian independence movement, and a significant number of black leaders journeyed to India to witness it firsthand (a major task in the days of steamships!). In 1935, Thurman, the twentieth century’s most important African American theologian, made a “pilgrimage of friendship” to India to meet Gandhi, the upshot of which he said changed his life forever (see Chabot 2011; Dixie 2011; Scalmer 2011).
Gandhi urged Thurman to develop a new brand of American Christianity to stress social justice themes. He remarked, “[I]t may be through the Negroes that the unadulterated message of nonviolence will be delivered to the world.” Others that followed included Benjamin Mays, later president of Morehouse College, whose 1936 speech to students introduced a young Martin Luther King, Jr. to nonviolence, and later James Lawson, recently released from prison for draft resistance. The brand of American Christianity they developed would be deeply indebted to the prophetic books of the Hebrew Bible and the prophetic elements of the Christian Gospels.
This marks the greatest difference between American nonviolence and that of Gandhi, or Moslem nonviolent figures like Bacha Khan (see Pashtun Times 2016), or Eastern figures like Thich Nhat Hanh (see Hanh 2005). Intellectually, it is evidenced in the powerful influence Martin Buber had on King’s thinking, most clearly in his “Letter from a Birmingham Jail.” Politically, it was evidenced in King’s strong personal bond with Rabbi Abraham Joshua Heschel, whose masterpiece, The Prophets, King carried with him the day he was assassinated.
King spoke of his politics as “true pacifism,” and his wing of the civil rights movement occupies a central place in the story of American pacifism and pacifism generally. Established pacifist figures had a major influence on King and his movement, especially in its formative years. Later, King championed pacifist views on international conflict in becoming, at the time he was assassinated, America’s most prominent opponent of the Vietnam War. But King’s “true pacifism” had its own unique inflection, best explored by relating it to the pacifist tradition more generally.
- “Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.”
- – Martin Luther King, Jr., “Letter from Birmingham Jail” (1963a)
Western pacifism has two main strands that can be distinguished both philosophically and historically (see Ryan 2013; 2014). They have often had little to do with each other despite being lumped under the same term. Both condemn violence, for reasons to be noted, but they have differed sharply on the question of power. A key to King’s success is how he mixed together the two traditions of pacifism, leading to a novel conception of nonviolent power.
But first let me speak to the two types of pacifism (see Brock 1972; 1999; 1991; Cortright 2008).
One type of pacifism I call personal pacifism. It opposes killing as a personal act, hence it opposes any social practices involving that act, such as war, but also practices such as capital punishment. This pacifism arose with the first Christians; it acquired a shadowy existence after Augustine and Christian just war theory, then it reemerged with the Protestant Reformation in the so-called left wing of that movement with groups like the Mennonites and later the Quakers. It is found in the work of Tolstoy, the most prominent late nineteenth-century pacifist. It almost always has a religious coloring.5
Before the twentieth century, proponents of this view called it “nonresistance.” (“Pacifism” is an early twentieth-century term that initially denoted opposition to war, only later did it acquire more specific connotations.) This pacifism is distinguished by its deep suspicion of power: its stigma on killing is a rejection of violence, but also a rejection of the Godlike power people are seen as claiming in the taking of human life – a power properly reserved for God alone. This same rejection of claims to Godlike power also informed personal pacifism’s rejection of slavery. This suspicion of power led to a suspicion of the political realm generally, so that, with a few exceptions like the Quakers, the politics of personal pacifism has been a politics of personal withdrawal from the political realm, i.e. an anti-politics.
King rejected personal pacifism’s anti-power, anti-political stance. But he was deeply influenced by some of its views, especially those grounded in the prophetic tradition.
One involved its privileging of dialogue, to the point of equating the dialogic with the peaceful, the monologic with the warlike. The religious story goes like this: speaking is the most Godly endeavor, and the most creative – as marked by God’s speaking creation into being; human beings share in this through the power of the word. Dialogue is something further. On one reading of the story, humanity was not complete until God created a second being, Eve, which God did from the concern that Adam have someone to converse with – the worry was that, left by himself, Adam might delude himself that he was God (see Zornberg 2011). Dialogue, thus construed, is not just a creative collaboration, it has connotations of questioning, even challenging. As Buber writes, “The Thou confronts me”: humans need another human, a Thou, “so that man will not imagine that he, like God, has no partner,” in the words of Rashi. A key influence on King was the prophet Jeremiah, for whom the tension of dialogue and power was a focal concern. Power numbs us to the claims of other people: in placing ourselves above others, in refusing to face them as equals, we refuse all speaking with them, and, most importantly, refuse all answering to them. (As Thomas Merton [1971a] wrote, “The language of the war-maker is self-enclosed in finality.”) Monologue is thus construed as a failure of responsiveness, hence a failure of responsibility. Little wonder, then, that the story of Cain and Abel identifies the first murder with the (non)-response: “Who, me?”
Another prophetic influence involved the construal of justice. The test of justice is the treatment of the powerless, symbolized in this tradition by “the widow, the orphan, the fugitive slave.” It does not matter how wealthy society is or how well the average person does if those at the bottom are abused. Justice is the dialogue of welcoming the powerless into society, hence its strong associations with hospitality. “If a slave has taken refuge with you, do not hand them over to their master. Let them live among you wherever they like and in whatever town they choose” (Deuteronomy 23:15–16). The work of justice means speaking for the powerless, the voiceless, bringing their suffering, especially their grief, to public expression. Almost all these themes resonated throughout the words and deeds of the nineteenth-century Abolitionist movement, where talk of welcoming the fugitive slave could be taken literally. They speak to their place in King as well, but for some words on the other tradition of pacifism.
The other type of pacifism I call political pacifism. Its focus is not killing as an act but war as a social practice. Specifically, it opposes what the early political pacifist Charles Sumner called the “war system,” by which is meant the practices of killing and destruction that characterize war making, and the practices of mobilizing human and material resources to those ends that characterize war building. Both personal pacifism and political pacifism oppose war unconditionally, but their logics differ. The personal pacifist is opposed to killing per se, and hence opposed to any endeavors involving it, such as war or capital punishment. By contrast, the political pacifist is like death penalty opponents who object to the kind of killing the practice involves: its social organization, accompanying rituals, etc. But just as such death penalty opponents may permit killing in other circumstances, political pacifists may permit it as well – in personal self-defense, say. So, personal pacifism’s approach is from the bottom up while political pacifism’s approach is from the top down. Historically, political pacifism’s origins are more recent and secular. It first emerged in the Enlightenment, though it is anticipated by figures like Erasmus. It coalesced after the Napoleonic wars when the global nature of that conflict convinced people that war was not a product of personal whims or stupidity but possessed a structure all its own, and as such required a more systematic response.
I speak of the critique of war, but political pacifism as it arose in the United States was intimately connected with the critique of other oppressive systems, especially slavery. America’s first important radical pacifist was also its first important white radical abolitionist, William Lloyd Garrison, for whom the “war system” and the “slave system” were part of the same problem. This remained a staple of antiracist thinking. The formal end of the American Civil War meant the end of war between regions but inaugurated the almost century of low-intensity warfare that constituted the era of segregation, whose centerpiece was the terrorist tactic of lynching.
Like personal pacifism, political pacifism privileges both violence and power, but with a structural emphasis. War is both a collective act of violence and a collective exercise of power. War’s violence requires instruments of violence, so the story of war is one of changing technology, and its exercise of power requires agencies of power, to mobilize and deploy the human and material resources for war, so the story of war is also one of changing organizations. (In recent centuries, the principal agent of war has been the state, which is why political pacifism has often been associated with anarchism.) Slavery, too, is a system of both violence and power. Clausewitz claimed the aim of war was to break the will of the enemy, achieving dominance – absolute power over the other – through the infliction of violence. This describes war between states, but, with slight modification, domination through violence also describes the relation of masters and slaves. This suggests why, once the institution of slavery was questioned, it was just a matter of time until the institution of war was questioned as well.
War was critiqued on two grounds. One was its injustice: both war making, the act of war itself, and war building, the ongoing preparations for war, were taken to violate the rights of individuals and groups. A special focus in the nineteenth century was the institution of national conscription, which political pacifism identified as a type of enslavement at the heart of war. But another worry was captured in the term, inhumanity: war was seen as taking on a life of its own, detaching itself from all human agency in ways that rendered it indifferent to all limits on warfare. (Readers may note that Marx’s critique of capitalism also contains both claims: capitalism is a system of injustice, insofar as one class exploits another, but also a system of inhumanity, insofar as economic relations acquire a life of their own that place everybody, regardless of class, at their mercy.)
Personal pacifism’s focus is interpersonal; in the words of Buber “Justice begins with you and me.” Political pacifism’s focus is structural, but the problem of inhumanity resonates with prophetic concerns. The idea that the creations of human beings, in this case a social system, escape their control in ways that eventually dominate them evokes the prophetic critique of idolatry. (This is exactly the language Marx uses to characterize humanity’s relation to capital, starting with money.) So too does the notion that all of this undermines humanity’s capacity for responsibility, hence overthrowing it means reclaiming the very capacity for moral agency.
What Does Peacemaking Look Like?
Personal pacifism’s answer is simple. Opposing war means not killing oneself, just as opposing slavery means not enslaving another oneself; in the conditions of the time, as I’ve noted, both meant detaching oneself from society. But things are more complicated for political pacifism, which doubts one can individually defect from the system, and anyway feels there is an imperative to transform the system. Abolitionism showed that people can hold the same judgment of a system but still disagree sharply on what to do about it. All abolitionists felt that slavery was absolutely immoral, but some felt that the solution lay in legislative action, others public education, others armed insurrection, etc. Similarly, political pacifists have all judged war absolutely immoral, but have had the same range of responses to ending it (except for armed insurrection, of course).
How Does One Absolutely Oppose a System, From Within?
I have noted King’s stress on creating a political movement, and I think it can be understood as a response to this problem. In the words of Thomas Merton (1971b), “Nonviolence must be aimed above all at the transformation of the present state of the world. But this poses enormous problems – for if nonviolence is too political it becomes drawn into the power struggle and identified with one side or another in that struggle, while if it is totally apolitical it runs the risk of being ineffective or at best merely symbolic.” A political movement does not just aim at radical transformation, for King the creation of a “Beloved Community” constituted by the mutuality of dialogue; it works to realize such a community within its own movement. In the words of Gandhi, it works to “Be the change.”
But this just sharpens the problem posed by Birmingham: Was engaging children, as it did, truly realizing the kind of “Beloved Community” the nonviolent movement claimed to be?
Gandhi convinced King that power and nonviolence were compatible. Indeed, they required each other. “Power without love is reckless and abusive, and love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love” (King 1967). Over time, King’s stress on power increased due to the frustrations he encountered. “Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily,” he wrote in “Letter from a Birmingham Jail.” “We know through painful experience that freedom is never voluntarily given up by the oppressor; it must be demanded by the oppressed.” The challenge was to fashion a kind of power truthful to nonviolence.
Nonviolence aims at transforming the opponent, not defeating them. King hewed to the religious notion that the real enemy is the sin, not the sinner, but he construed this in structural terms. The enemy is the social system of racism, or that system most exemplified by racism, which, in its inhumanity, victimizes all its members. The question, then, is our relation to that system. The relation of white people to it differed mainly by degrees. The racist policemen, like those encountered in Birmingham, were deeply implicated in it, but white liberals were also implicated in it insofar as they did nothing to challenge it but stood by silently. Transformation of the opponent, then, meant redefining their relation to that evil system.
Nonviolence aims to do this by what may be termed dialogic power. How should it be understood? Proponents of nonviolence conceive it as forceful, but not coercive. They mean by this that nonviolence aims to transform the opponent from the inside, as it were. The language of “awakening” is important here, as in “awakening” people to their conscience, to their better selves, etc., marking the fact that, like the Biblical prophet, nonviolence does not preach entirely new values so much as aims to call people back to those they already hold but fail to enact. The language of “creativity” is also important, but the picture of creativity is one of realizing possibilities already there, in the words of Buber, “calling forth” the “work” through acts that involve both “sacrifice” and “risk” (Buber 1958, 16). Talk of creatively awakening people to their better selves helps explain the connection drawn by this tradition between nonviolence and forgiveness, insofar as we may forgive another in the hope that, by forgiving them, we will inspire them to change themselves.
But nonviolent direct action has an element of forcefulness forgiveness lacks. All dialogue for the prophetic view involves confrontation, but nonviolence privileges this. This is most evident in the prominent role it accords to shame.
“The nonviolent resister must often express his protest through noncooperation or boycotts, but he realizes that these are not ends themselves; they are merely means to awaken a sense of moral shame in the opponent.” King insisted the goal was not to defeat opponents or humiliate them but “to awaken a sense of shame within the oppressor and challenge his false sense of superiority.” And the shame is not just a personal one, but a public one. Not all civil disobedience aims at public exposure. Henry David Thoreau’s refusal to pay his taxes and going to jail in protest of slavery was a private act of conscience. And not all instances of nonviolent direct action make shaming prominent. Rosa Parks’ refusal to take her place on a segregated bus eventually drew public attention to the shameful practice but it didn’t seek to shame the immediate opponent. In Birmingham, by contrast, the whole point of involving children was eliciting shame, revealing the injustice of the system and how it was willing to treat even the weakest and most vulnerable.
A crucial distinction here is between shame and humiliation. It bears on the question of power. Humiliating others seems to involve an assertion of power over them, presuming and promoting a sense of superiority over another that King identifies with racism. The power differential means that most if not all systems of oppression are, among other things, constant exercises in humiliation. Shaming, at least as King understands it, aims at puncturing a false sense of superiority that comes with power, leveling the playing field to allow for true face-to-face encounters. Shame, at least as King understands it, aims to awaken people to their better selves, humiliation involves no such reference. It does not speak to the other’s integrity so much as attack their dignity.
Did nonviolence succeed in this regard? There are a few instances, but not many, where it had this impact on its immediate opponents. There is little evidence in the Birmingham case that police officials experienced any transformation by the actions they encountered. But the “opponent” included all those implicated in the racist system, and here it succeeded. King rightly remarked that the civil rights movement did more to awaken white people to the shame of segregation than anything in the previous hundred years. Our concern is not with the success of such tactics, but with their ethics.
The Dilemmas of Birmingham
No one expected the Birmingham campaign to be easy given the city’s history of extraordinary racial violence. The city was nicknamed “Bombingham” for its incidents of white bombing of black houses and establishments. One neighborhood of more affluent African American homes was called “Dynamite Hill.” Newspapers deemed it “The South’s Johannesburg.”
More than anywhere else, King’s movement assumed that Birmingham would bring violence and almost certainly deaths.
The Birmingham action sputtered at the start in failing to mobilize significant numbers for direct action. News coverage diminished to the point the press was starting to leave town. This is what prompted King’s symbolic act of going to jail. The day he did so, James Bevel arrived from Mississippi. From the start, Bevel saw young people as a resource for the movement. He named his action “D-Day.” That morning, one thousand elementary school and high school students, briefly trained in dealing with police tactics, assembled in churches. Just after noon, they marched in disciplined waves to City Hall and the downtown business district. Six hundred were arrested. The next day, since jails were full, police chief Bull Connor decided to stop the marches forcibly rather than make arrests. As television cameras rolled, billy clubs, fire hoses, and dogs were unleashed on the marchers. Then, and in subsequent days, national and international media carried images of police clubbing black children and firemen hosing them with jets of water powerful enough to strip the bark off trees at one hundred feet. As the days passed, more than one thousand students were arrested while pressure increased on civic leaders to resolve the crisis. Eventually, an accord was reached calling for desegregation of lunch counters, restrooms, and drinking fountains and more economic opportunities for African Americans. Marian Wright Edelman, founder and president of the Children’s Defense Fund, later wrote, “Pictures of the bravery and determination of the Birmingham children as they faced the brutal fire hoses and vicious police dogs were splashed on the front pages of newspapers all across America and helped turn the tide of public opinion in support of the civil rights movement’s fight for justice” (Joiner 2013).
The Question of Provocation
I’ve noted Michael Gross’s remark that the problem of provocation is especially vexing for nonviolence. He contrasts it with the guerrilla war strategy of employing innocent human shields to discourage a violent response. Such shielding, if successful, brings no violence, whereas “backfire,” his term for nonviolent provocation, succeeds only if it brings such violence. “Herein lies the paradox and moral challenge of a campaign that professes nonviolence” (Gross 2015, 241). As Gross notes, much rests on the kind of provocation involved – this was clearly an issue with rock throwing in the Intifada. He also notes that there is a proportionality consideration, akin to just war principles: anticipating and inviting a violent response need not mean inviting a deadly one.
Here I focus on the Birmingham case. Others are quite different, though Birmingham shares much with the other canonical case of nonviolent protest inviting violence, Gandhi’s “Salt March.” Let me suggest some responses to the criticism of this tactic as conducted here.
The first point to stress is that, in the Birmingham case, the actions of demonstrators were perfectly legal. And not just legal, most were the sort of actions that in other circumstances would be innocuous, or certainly not cause for alarm. People might notice a silent march, but no one would pay special notice to people eating at a lunch counter, shopping at a clothing store, or registering to vote – the kind of actions deemed “provocations” by civil rights opponents and some white liberals. During the civil rights years, other groups sometimes did engage in actions that, while legal, were still alarming. The Black Panther Party first achieved prominence carrying firearms into the lobby of the California state capital. Their doing so was actually legal at the time (it did not remain so very long!), but it was also outrageous and meant to be so. In contrast, the actions of King and his allies were chosen for their normalcy. Their conception of nonviolence excluded things like rock throwing. So the issue here is not the abstract one, “Doing some action X that provokes some violent response Y,” but “Doing a perfectly legal/normal action X etc.”
Suppose I perform an act I have every right to do, but it leads someone – call them P – to commit violence against me. In what sense have I “provoked” it? Since the language of provocation is so often used in victim blaming, consider this parallel case:
- If a woman wears a dress she has every right to wear, and it leads P to rape her, has she “provoked” the rape?6 This is a common excuse for rape. The very language serves to deny any agency to the aggressor, suggesting that, while the woman wore the dress as a matter of full volition, her attacker was somehow driven to do it by her actions – which is nonsense. Now suppose she had every right to wear the dress she did, but that dress violated what P took to be standards of propriety, and this led him to conclude she was inviting his actions. I assume this is the thought at work when someone says of a rape, “She was asking for it.” So too, white racists might say of an attack on a peaceful law-abiding demonstration, “They were asking for it.” The problem, of course, is that one person’s “standards of propriety” (“Proper women don’t dress that way,” “Proper Negroes don’t act that way”) is another person’s cultural oppression (“Stay in your place!”). I can imagine a friend of the woman suggesting it is imprudent to wear a dress that might lead men to respond this way, given sexist standards, just as some felt the civil rights demonstrators were imprudent in acting as they did, given racist standards. But anything more suggests an endorsement of the “standards of propriety” that, in the civil rights case, demonstrators meant to challenge (and which the woman, in my example, might mean to challenge).
But what if someone knows not just that their actions could generate a harsh response, but takes them with the aim of generating such a response? This is the parallel to “backfire” strategies, in Gross’s terms.
So consider another case, drawn from real life.
- When I first started teaching, we had a ferocious sexist in the department named Frank. He was opposed to the whole idea of women in philosophy and made it clear that if the department ever hired one he would make her life miserable. Eventually, due to administrative pressure, the department hired its first woman. As things progressed, whenever she spoke up in department meetings, Frank responded with nasty sexist comments, sometimes subtle, sometimes not. Often, within her hearing, he would refer to her as “Little Bo Peep.” He was a generally obnoxious man, and some of my colleagues dismissed his ugly abusive behavior as “That’s just Frank!” But I remember feeling that dismissing his behavior as personal idiosyncrasy was mistaken. People say nasty things all the time in department meetings with no larger message. Frank’s actions were not just obnoxious, they did send a message, and a political one: “You are not the type of person that belongs in this profession, or academia generally. I will keep reminding you of this in ways you can do nothing about, because most others agree with me or basically don’t care.”
- The situation was intolerable, but there was no way to address it short of outside intervention. One day we learned the dean of the college would be attending the department meeting. It seemed that if he witnessed Frank’s behavior he might do something to stop it, but it was also clear that Frank might act to restrain himself on this occasion, for fear of being found out.
- I spoke with my woman colleague beforehand. I learned she intended to say precisely those things most likely to elicit Frank’s sexist rants, with the aim of exposing him before the dean. She intended a “backfire” strategy, and it succeeded. (My sole contribution was to interrupt Frank at some point to say that I was more interested in hearing from my woman colleague.) Frank launched into one of his sexist tirades, stunning the dean at first, then leading him to take appropriate action.
- (Frank was later forced into retirement.)
Here, like Birmingham, the aim was to provoke a harsh response. It is crucial that what was provoked was not an isolated individual act but an instance of a larger pattern, itself expressing entrenched practices of domination/inequality (sexism, in the one case, racism, in the other). Also important is that the practices in question were sustained by an element of duplicity: Frank would engage in his sexist actions in some contexts but not others, just as white racists engaged in their actions in some contexts but not ones witnessed by the world at large. Not all systems of oppression have this duplicity, but those that do pose special challenges in confronting them. The duplicity is not just individual; it requires a larger context of support or at least passivity to be sustained. I learned afterward that the department head, Don, had counseled Frank to keep his temper when the dean came. He claimed not to be supportive of Frank’s sexism, but rather wanted to keep it “in the department.” Exactly the same logic inspired white moderates in the South to counsel more racist elements to “behave themselves” when outsiders were around. Finally, it’s important that in both cases the protesters by protesting were exercising agency of a type that the system they confronted aimed to undermine.
Critics of the Birmingham actions alleged there was something paradoxical, at worst hypocritical, in opposing racist violence with actions aimed at provoking that violence. I don’t see why. In my department case, my woman colleague opposed sexist practices generally, and Frank’s sexism in particular. Her strategy for doing so was to provoke that very behavior. I don’t see anything paradoxical or hypocritical about this. There might be questions if she’d done it by hurling sexist epithets at him, just as there might be questions if the Birmingham protesters had elicited violence by engaging in violence themselves. But this is precisely what neither did. To me, the point is sufficiently obvious that I can understand King’s dismissive attitude to white liberal concerns. (After the department encounter, Don complained to me about all the “unpleasantness” provoked in the department meeting. I took this to signify his cluelessness about the larger problem.)
The cases are dissimilar in an important respect. In the department case, the sexist diatribes came from an ordinary faculty member, while in the Birmingham case the racist violence came from official figures who were not just reacting to perfectly legal actions, but in a manner itself illegal. This, too, sent a message – that African Americans could expect to be treated by figures of authority that ignored all the standard constraints on authority. It is as if my female colleague experienced sexist diatribes every time she went to the dean’s office (when no one could hear it), and was subjected to the most arbitrary sanctions afterward. (I am sure this happened to many women, but not in this case.) The idea that someone bringing this to public light by provoking it would be acting paradoxically, or hypocritically, strikes me as absurd.
I’ve assumed that the actions of the protesters were perfectly legal, but complications could arise. Almost always, protesters were instructed by local police officers to desist. But this did not make their actions illegal; it only made them contrary to the wishes of the local police. More serious questions arose when demonstrators were faced with court-ordered injunctions against proceeding. This typically led to disagreement among activists, with some feeling they should be ignored, others feeling things should be kept in abeyance until such court orders could be legally challenged. Finally, complications arose from the United States’ federal system, in which local courts/officials and federal courts/officials could disagree. This raises important issues about the logic of civil disobedience, but it’s important not to focus on the actions of demonstrators alone. Whether or not protesters acted entirely legally, the white power structure clearly responded illegally – employing tactics, that is, that were inappropriate regardless of the legality of protesters’ actions. This is precisely why officials did not want their responses to be seen. This likens things to the “She was asking for it” rape case. If a protester breaks the law, they can hardly blame the authorities for arresting them. But they can certainly blame the authorities for flouting the law in their response.
The Question of Children
But What of Engaging Children in Such Protests?
I don’t agree with all aspects of this tactic, principally with the exceptional youth of some of the demonstrators. I also don’t agree with some of the arguments James Bevel gave at the time. He noted that African Americans as young as 17 were being drafted to fight and die in Vietnam, “if a young person could go to Vietnam and engage in war, then a person certainly the same age and younger could engage in a nonviolent war at home” (Bevel 1985). This might show that someone is hypocritical who supports youngsters fighting in Vietnam but not for civil rights. But both may be exploitative of young people. Rather than justify it in full, let me suggest why engaging children seemed reasonable, despite the obvious worries, and in so doing say something about why civil rights leaders responded to white liberal criticism with annoyance.
Starting with the Supreme Court decision Brown vs. Board of Education (1954), judging segregated public education unconstitutional, children were at the center of desegregation struggles.7 But that decision contained a crucial ambivalence. It outlawed segregation, but then ruled that desegregation in public schools should proceed “with all deliberate speed.” History threatened to repeat itself: from the end of the Civil War, in matters of race, history showed that court decisions by themselves meant nothing. The so-called Civil War Amendments, abolishing slavery and granting former slaves rights like equal protection under the law, were ignored for a century. Telling the racist power structure to desegregate “with all deliberate speed” could mean another century of inaction. (If anyone thinks the achievement of civil rights for African Americans was inevitable, consider that Native Americans have yet to receive their full civil rights.) The civil rights movement was a response to this fact.
The white power structure responded to the Brown decision by immediately announcing its refusal to comply. In time, this was termed the policy of “Massive Resistance,” which involved explicit statements that any attempts to force compliance would be met with armed resistance. White liberals immediately issued cautionary statements about not “provoking” violence. When actions were initiated to compel the University of Alabama to admit an African American student, Life Magazine branded it a “new provocation by an organization which inflames the Negroes’ most bitter enemies,” one that could only “alienate” their supporters. Leading liberal figures like Arthur Schlesinger, Jr. called for a two-year “moratorium” on any actions designed to implement the Brown decision (see Polsgrove 2001).
The “provocation” issue had long been central to the case for segregation. The Supreme Court decision legalizing segregation, Plessy vs. Ferguson (1896), which Brown overruled, argued that races must be separated since mixing them would provoke violence. After Brown, children were on the firing line. In September 1957, the governor of Arkansas blatantly defied a federal order to integrate Central High School in Little Rock, Arkansas. First, he called out the National Guard to prevent nine young African American students, one as young as fifteen, from entering the school, then he quickly withdrew the Guard, leaving them at the mercy of the angry mob he’d whipped up. The crisis was only resolved, if that is the right word, when President Eisenhower sent the 101st Airborne Infantry to occupy Little Rock and designated federal marshals to escort the children through the angry crowds.
Many northern liberals protested vehemently at placing children at risk. They included Hannah Arendt, one of the leading liberal intellectuals in America. “Under no circumstances would I expose my child to conditions which made it appear as though it wanted to push its way into a group it was not wanted,” she wrote. She stated that doing so would only “strip the child” of “personal pride, essential for personal integrity.” “If I were a Negro mother in the South, I would feel that Supreme Court ruling, unwillingly but unavoidably, has put my child into a more humiliating position than it had been in before.” Such actions, she concluded, forced children to bear the brunt of adult political zeal.8
There is much nonsense in these remarks, commonly attributed now to Arendt’s ignorance of American race relations. Suffering abuse from an angry white mob could not have been the most pleasant experience for African American children. But the idea that it would “strip” them of a personal pride they otherwise possessed, and humiliate them more than they were already humiliated, betrays an indifference to the impact of white racism. It also suggests a complete ignorance of the Brown vs. Board of Education decision. For the heart of that decision was a series of psychological studies showing that segregation in public education undermined an African American child’s most basic sense of self-worth, in ways that could damage them the rest of their lives.
Arendt’s views were not entirely without merit. The parents of those African American children reflected seriously on their actions, as evidenced in the fact that only some chose to put their children in that situation. So, there were prudential concerns here. But the problem with saying that African American children were somehow used in being sent to integrated schools, or that it was improper to send them there because of the violence it might provoke, is that any act of integration (in schools, and most other institutions) could provoke this response, so sparing children from it meant renouncing the goal of integration itself. This is different from the claim that young people are already being subjected to violence (though they were); it is not quite the claim that the violence provoked is “worth it.” But I think it explains the impatience with white liberal critics, whose reasons for counseling “Go slow!” amounted to an argument to “Stop!”
A final note is that many of the young people involved in the Birmingham protests have since been interviewed, and none voice doubts about their actions. Quite the contrary, they all evidence pride. Legitimate questions can be raised about how accurate these studies are, e.g. how many views have been sampled, and were they chosen for their positive viewpoint. By contrast, for example, at least one of the children involved in the Little Rock incident, Elizabeth Eckford, voiced great ambivalence about it later on. While she did participate in anniversary celebrations later on, she struggled mightily with the personal impact of the experience, and said that while she was pleased to have done it once she wouldn’t do it over again.
Coda: Birmingham Sunday
Birmingham was a turning point in the civil rights struggle. It may have succeeded partly because, as conducted, some of the most serious doubts that can be raised about nonviolent provocation could be met. But that is just to say that it may provide a model of what an ethically satisfactory action of this type should look like. Also, there was a degree of sheer luck, insofar as the violence provoked could have been much worse. The fire hoses trained on children could have caused permanent disability or death. The New York Times’ chief war correspondent, R.W. Apple, later said that none of the war zones he covered upset or frightened him as much as Birmingham. (The night the crisis was resolved, an explosive went off near the Gaston Motel room where King and SCLC leaders had stayed, and the next day the home of King’s brother Alfred Daniel King was bombed.) The response to the Birmingham actions might have been quite different if its human costs had been much higher.
And those costs got even higher. Four months after the Birmingham actions, and just weeks after King’s “I Have a Dream,” Ku Klux Klan members bombed the Sunday morning service at Birmingham’s Sixteenth Street Baptist Church. Four young girls were murdered: Addie Mae Collins, Carol Denise McNair, Cynthia Diane Wesley, and Carole Robertson. Martin Luther King, Jr. delivered the eulogy at the joint funeral of three of the victims. Drawing on the text,
“A little child shall lead them,” he assured those gathered there that the girls had not died in vain:
- They are the martyred heroines of a holy crusade for freedom and human dignity. And so this afternoon in a real sense they have something to say to each of us in their death. They have something to say to every politician who has fed his constituents with the stale bread of hatred and the spoiled meat of racism. They have something to say to all those who have passively accepted the evil system of segregation and who have stood on the sidelines in a mighty struggle for justice.
- They say to each of us, black and white alike, that we must substitute courage for caution. They say to us that we must be concerned not merely about who murdered them, but about the system, the way of life, the philosophy which produced the murderers. Their death says to us that we must work passionately and unrelentingly for the realization of the American dream.
- (King 1963b)
Apologists for the bombing said it would never have occurred without the provocation of the African American struggle for civil rights.
Copyright ©2017 Cambridge University Press,
All Rights Reserved.
This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.
First published 2017
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library.
ISBN 978-1-107-13224-5 Hardback ISBN 978-1-107-58478-5 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.